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[ { "docid": "6207628", "title": "", "text": "Aronoff plaintiffs each add claims for negligent misrepresentation, and AUSA plaintiffs also assert a claim for tortious interference with contract. Joseph Grendi has moved for summary judgment on each of these claims. a. Section 10(b) The plaintiffs base their § 10(b) claims against the management defendants on the misstatements that they allege that JWP and its management made in JWP’s SEC filings, consolidated financial statements, press releases and reports, note agreements, no-default certificates, annual reports, proxy statements and face-to-face meetings with certain plaintiffs. It is undisputed that Joseph Grendi did not sign, or explicitly authorize the signing of, any of the documents that JWP filed with the SEC, disseminated to the public or provided to the AUSA plaintiffs or to the Aronoff plaintiffs. It is also undisputed that Joseph Grendi did not make any oral statements to the AUSA plaintiffs or to the Aronoff plaintiffs and that none of the statements quoted in press releases or reports was attributed to him. Joseph Grendi argues that the plaintiffs have therefore failed to present evidence from which a reasonable jury could find that he made any of the alleged misrepresentations. Hence, he contends that under the Supreme Court’s ruling in Central Bank, he is entitled to summary judgment dismissing the plaintiffs’ § 10(b) claims because he cannot be held liable for a primary violation. To counter this argument, the plaintiffs cite two cases in which courts in this district have specifically stated that a party may be held primarily liable under § 10(b) for providing fraudulent raw data on which false or misleading statements are based, even if someone else actually made the misleading statements to investors. See In re Union Carbide Corp. Consumer Prods. Business Securities Litigation, 676 F.Supp. 458, 468-69 (S.D.N.Y.1987); In re Kidder Peabody Securities Litigation, 1995 WL 590624, at *9 (S.D.N.Y. Oct. 4, 1995). Plaintiffs contend that Central Bank did not purport to change the established standard for primary liability, as set forth in Union Carbide and Kidder Peabody, and that Joseph Grendi may be held primarily liable as a direct participant in the alleged fraud because he" } ]

[ { "docid": "15464027", "title": "", "text": "under § 10(b), based on alleged misrepresentations in Veri- Sign’s financial statements in the Company’s 10-Ks for fiscal years 2000 through 2005, the claim alleging misrepresentations in the Form 10-K for fiscal year 2000, which was filed on March 28, 2001, would be time-barred because the Form 10-K was filed more than five years before the present action was filed on July 5, 2006. ii. § 14(a) claim Plaintiffs allege that proxy solicitations issued from March 31, 1999, to April 16, 2003, for the election of VeriSign’s directors, contained false or misleading information, including the allegedly false nominal grant dates. CAC ¶¶ 153-155. In the eighteenth cause of action, plaintiffs assert that the proxy statements violated § 14(a) and Rule 14a-9 because they omitted material facts, including that the individual defendants were knowingly causing VeriSign to engage in an option backdating scheme. CAC ¶269. Plaintiffs request damages and injunctive relief in the form of voiding the elections for which the proxy solicitations were issued. Defendants argue that the § 14(a) claim should be dismissed because plaintiffs cannot obtain relief under that provision. Section 14(a) prohibits the solicitation of proxy votes “in contravention of such rules and regulations as the [SEC] may prescribe as necessary or appropriate in the public interest or for the protection of investors.” 15 U.S.C. § 78n(a). SEC Rule 14a-9 prohibits solicitations “containing any statement which ... is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading.” Mills v. Electric Auto-Lite Co., 396 U.S. 375, 383, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). To state a claim under Rule 14a-9 and Section 14(a), a plaintiff must allege a false or misleading statement or omission of material fact; that the misstatement or omission was made with the requisite level of culpability; and that it was an essential link in the accomplishment of the transaction. Desaigoudar v. Meyercord, 223 F.3d 1020, 1022 (9th Cir.2000); see also In re Atmel, 2007 WL 2070299, at *8. Under the PSLRA, a §" }, { "docid": "7976034", "title": "", "text": "Evidence of Conscious Misbehavior Plaintiffs also believe that the CAC alleges facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness. The Court disagrees. Throughout the entire CAC, Plaintiffs allege a misrepresentation, and then make a conclusory statement that Defendants knew or should have known that the statement was false and misleading. As demonstrated throughout this Order, Plaintiffs provide no facts that would substantiate these bald allegations. G. Dismissal with Prejudice “If a complaint is dismissed for failure to state a claim, leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986). Between December 12, 1997 and February 24, 1998, eight complaints and one amended complaint were filed against Defendants. On April 6, 1998, the Court consolidated the eights cases, appointed the Plevy class as the lead plaintiffs’ class, and appointed Gary Weinstein as the lead plaintiffs’ counsel. On April 29, 1998, lead counsel filed the CAC. Lead counsel has informed the Court that he conducted an investigation prior to filing the initial Plevy complaint, and conducted further investigations before filing the CAC. The Court’s dismissal of the CAC is based upon Plaintiffs’ failure 'to provide specific facts that would indicate that Defendants’ statements were false when made and that would give rise to a strong-inference of scienter to defraud. At the hearing on Defendants’ motion to dismiss, the Court asked Plaintiffs’ lead counsel if he was aware of any other facts in support of Plaintiffs’ allegations that were not included in the CAC. Lead counsel responded that he was aware of no such facts. Furthermore, the vast majority of Plaintiffs’ alleged misrepresentations and omissions are rebutted by WDC’s public filings. These filings would no doubt be considered in future amended complaints. Accordingly, the Court concludes that Plaintiffs are unable to cure the deficiencies in the CAC that resulted in its dismissal. III. CONCLUSION For all of the above reasons, the Court hereby DISMISSES Plaintiffs’ Consolidated Amended Complaint WITH" }, { "docid": "15464028", "title": "", "text": "plaintiffs cannot obtain relief under that provision. Section 14(a) prohibits the solicitation of proxy votes “in contravention of such rules and regulations as the [SEC] may prescribe as necessary or appropriate in the public interest or for the protection of investors.” 15 U.S.C. § 78n(a). SEC Rule 14a-9 prohibits solicitations “containing any statement which ... is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading.” Mills v. Electric Auto-Lite Co., 396 U.S. 375, 383, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). To state a claim under Rule 14a-9 and Section 14(a), a plaintiff must allege a false or misleading statement or omission of material fact; that the misstatement or omission was made with the requisite level of culpability; and that it was an essential link in the accomplishment of the transaction. Desaigoudar v. Meyercord, 223 F.3d 1020, 1022 (9th Cir.2000); see also In re Atmel, 2007 WL 2070299, at *8. Under the PSLRA, a § 14(a) claim must be pled with particularity. The required state of mind for a § 14 claim is negligence, however, not knowledge or deliberate recklessness. See In re McKesson HBOC, Inc. Sec. Litig., 126 F.Supp.2d 1248, 1267 (N.D.Cal.2000). Thus, plaintiffs must plead particularized facts that give rise to a strong inference of negligence. Id. Defendants argue that the allegations in the CAC do not support a claim that the proxy solicitations caused any damages, because the request for injunctive relief is moot, and because the claim is time-barred. First, defendants contend that the CAC does not state what damages VeriSign suffered as a result of the allegedly misleading proxy statements. They argue further that there can be no damages, as the election of particular slates of directors could not have caused any damage to VeriSign. They note that a plaintiff in a proxy solicitation case must plead and prove a “transactional nexus” or a “transactional causation.” See Gaines v. Haughton, 645 F.2d 761, 776 (9th Cir.1981), overruled in part on other grounds by In re" }, { "docid": "15463950", "title": "", "text": "the proceeds received by these defendants as a result of their exercise of the allegedly backdated options; (12) a claim for restitution, against defendants Sclavos, Kremian, and Evan; (13) a claim of breach of fiduciary duty, against the director defendants, for failing to bring suit against KPMG; (14) a claim of negligence/professional malpractice, against KPMG, based on the allegation that KPMG failed to perform audits in accordance with GAAS; (15) a claim of breach of contract, against KPMG, based on the allegation that KPMG breached its contract with VeriSign; (16) a claim of aiding and abetting breach of fiduciary duty, against KPMG, based on the assertion that KPMG aided and abetted VeriSign’s officers and directors in breaching their fiduciary duties, in that KPMG knew about and participated in the alleged director and officer misconduct; (17) a claim under § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, against the director defendants and defendant Evan, based on the allegation that these defendants disseminated and approved financial statements, in the Company’s Form 10-K filings for fiscal years 1998 through 2005, which did not disclose the Company’s alleged option backdating practices; (18)a claim under § 14(a) of the Securities Exchange Act and Rule 14a-9 promulgated thereunder, against defendants Scla-vos, Gallivan, Yanowitch, Evan, Schaeffer, Korzeniewski, Pereira, and Kremian (all the option defendants except Keith), based on allegations that the Company’s proxy statements, issued in connection with the Company’s annual meetings in 1999, 2001, 2002, and 2003, falsely reported the option defendants’ compensation (because of misrepresentations regarding the option grants); (19)a claim under § 20(a) of the Securities Exchange Act, against Evan, Kremian, and the director defendants, based on the allegation that they were controlling persons of VeriSign, and caused VeriSign to engage in unlawful conduct. Nominal defendant VeriSign now seeks an order dismissing the CAC pursuant to Rule 12(b)(6), arguing that plaintiffs have not sufficiently pled particularized facts demonstrating that a pre-filing demand on VeriSign’s Board would have been futile. The individual defendants seek an order dismissing the claims asserted against them pursuant to Federal Rules of Civil Procedure" }, { "docid": "13031368", "title": "", "text": "claim under § 20(a) of the Exchange Act, a plaintiff must show: (1) a primary violation of the securities laws; (2) that the individual defendants had the power to control the general business affairs of the primary violator; and (3) that the individual defen7 dants “had the requisite power to directly or indirectly control or influence the specific corporate policy which resulted in the primary liability.” Id. (quoting Theoharous v. Fong, 256 F.3d 1219, 1227 (11th Cir.2001)). “Because a primary violation of the securities laws is an essential element of a § 20(a) derivative claim, ... a plaintiff adequately pleads a § 20(a) claim only if the primary violation is adequately pleaded.” Id. II. Analysis The CAC alleges that each of the Defendants violated § 10(b) of the Exchange Act and Rule 10b-5. Plaintiffs further allege that Individual Defendants, as “controlling persons” of Ebix, are individually liable under § 20(a) of the Exchange Act. Defendants move to dismiss Plaintiffs’ CAC with prejudice for failure to satisfy the heightened pleading requirements under the PSLRA [28-1]. Specifically, Defendants argue: (1) the CAC fails to allege any misrepresentation or omission of material fact pursuant to the PSLRA pleading standards and merely complains of inactionable mismanagement; (2) the CAC contains only conclusory statements regarding scienter, which do not satisfy the PSLRA’s requirements; and (3) the CAC does not adequately allege loss causation. [28-1] at 3. For the reasons discussed below, the Court finds that Plaintiffs have satisfied all applicable pleading requirements. A. False and Misleading Statements The starting point for any § 10(b) claim is materially misleading statements or omissions. Under the PSLRA, in an action premised on an untrue statement or omission of material fact, “the complaint shall specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed.” 15 U.S.C. § 78u-4(b)(l). The PSLRA’s heightened pleading requirements are intended to- prevent abusive suits where plaintiffs bring an" }, { "docid": "15464020", "title": "", "text": "price of the stock, are sufficient to adequately allege economic loss. The court finds that the CAC fails to plead facts showing economic loss or loss causation. Indeed, as defendants have pointed out, it is questionable whether plaintiffs will ever be able to allege loss causation, because VeriSign’s stock price went up, not down, after the June 27, 2006, announcement of the grand jury subpoena, the inquiry from the SEC, and the announcement of the internal review of stock option practices by VeriSign’s board of directors. Similarly, the stock price went up, not down, after VeriSign’s November 21 and 22, 2006, announcements of the preliminary results of the directors’ review of the stock option grants, and its statement of its intent to restate its 2001-2005 financial statements to record $250 million in non-cash, stock-based compensation expense. The announcement of the resignations of Reyes and Lauer is meaningless for purposes of showing loss causation, as the announcement was made more than five weeks after the announcement of the grand jury subpoena and the SEC investigation. That initial disclosure on June 27, 2006, constituted “disclosure to the market,” and plaintiffs cannot claim that the market was unaware of these facts until Reyes and Lauer resigned weeks later. Moreover, plaintiffs do not explain the connection — if any — between the resignations and the alleged fraudulent backdating of options. In particular, there is no indication in the CAC that VeriSign announced that Reyes and Lauer had resigned because they were involved in options backdating at VeriSign. Reliance Defendants argue that plaintiffs cannot plead reliance under their theory of the § 10(b) claim, because the individuals who were allegedly responsible for VeriSign’s repurchase of its shares—the director defendants and Evan—are the same individuals who were responsible for VeriSign’s allegedly false financial statements, and who “knew or recklessly disregarded the fact that the Company’s financial statements were misleading.” Rebanee cannot be established when the individual allegedly acting on a misrepresentation “already possesses information sufficient to call the representations into question.” Atari Corp. v. Ernst & Whinney, 981 F.2d 1025, 1080 (9th Cir.1992). Defendants assert that" }, { "docid": "15464026", "title": "", "text": "31, 2003. As this was more than two years before the first complaint was filed in this consolidated action, defendants contend that the § 10(b) claim is time-barred. In opposition, plaintiffs argue that the § 10(b) claim is timely. They claim that regardless of whether inquiry notice or actual notice is the standard, they could not have discovered, and did not discover, defendants’ unlawful practices before 2006. They assert that the first indication of any possible wrongdoing with respect to Veri-Sign’s stock option grants came on June 27, 2006, when VeriSign announced the federal investigation. They contend that there is no way they could have been put on notice of defendants’ wrongful acts before the U.S. Department of Justice or the SEC was aware of it. The court finds that the claim is only partially time-barred. Plaintiffs have adequately established that they were not placed on notice of the alleged violations prior to the announcement of the grand jury subpoena and SEC investigation. However, in the event that plaintiffs are able to state a claim under § 10(b), based on alleged misrepresentations in Veri- Sign’s financial statements in the Company’s 10-Ks for fiscal years 2000 through 2005, the claim alleging misrepresentations in the Form 10-K for fiscal year 2000, which was filed on March 28, 2001, would be time-barred because the Form 10-K was filed more than five years before the present action was filed on July 5, 2006. ii. § 14(a) claim Plaintiffs allege that proxy solicitations issued from March 31, 1999, to April 16, 2003, for the election of VeriSign’s directors, contained false or misleading information, including the allegedly false nominal grant dates. CAC ¶¶ 153-155. In the eighteenth cause of action, plaintiffs assert that the proxy statements violated § 14(a) and Rule 14a-9 because they omitted material facts, including that the individual defendants were knowingly causing VeriSign to engage in an option backdating scheme. CAC ¶269. Plaintiffs request damages and injunctive relief in the form of voiding the elections for which the proxy solicitations were issued. Defendants argue that the § 14(a) claim should be dismissed because" }, { "docid": "15464023", "title": "", "text": "derivative liability to the corporation precisely because they misled the corporation. The court finds that plaintiffs fail to plead facts showing reliance. As with loss causation, it may prove impossible for plaintiffs to adequately plead reliance under the facts of the case. Plaintiffs allege that “VeriSign would not have purchased VeriSign common stock at the prices it paid, had the market previously been award [sic] that the market price of Veri-Sign’s stock was artificially and falsely inflated by defendants’ misleading statements.” CAC ¶ 266. However, the CAC does not identify a single VeriSign officer or director who relied on the supposedly false or misleading financial statements in deciding to undertake the stock repurchase on VeriSign’s behalf. Plaintiffs might be able to plead reliance if they were to allege that the corporate decision-maker for the repurchase of shares had no knowledge of the alleged fraud. Here, however, plaintiffs allege that all the senior management and board members not only knew about the alleged backdating but also caused it, and that all the director defendants and Evan intentionally caused VeriSign to release financial statements that omitted to disclose the alleged backdating. Timeliness In addition to pointing to the pleading deficiencies, defendants contend that the § 10(b) claim must be dismissed as untimely. They assert that plaintiffs were on notice of the facts upon which they base their claim of backdating no later than one month after each grant date, and more than two years before they filed the complaint. The limitations period for a § 10(b) claim is “the earlier of (1) 2 years after the discovery of the facts constituting the violation, or (2) 5 years after such violation.” 28 U.S.C. § 1658(b). The Ninth Circuit has not yet addressed whether “discovery of the facts constituting the violation” requires a plaintiffs discovery of a misrepresentation, or simply that the plaintiff was put on inquiry notice of the misrepresentation. See Berry v. Valence Tech., Inc., 175 F.3d 699, 703-04 (9th Cir.1999); accord, Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 951 (9th Cir.2005). The Ninth Circuit has indicated, however," }, { "docid": "15464022", "title": "", "text": "plaintiffs’ theory that VeriSign relied on the allegedly misleading financial statements when it repurchased the shares is untenable, in view of plaintiffs allegation that the individuals making the repurchase decisions already knew—and indeed were responsible for—the issuance of misleading financial statements. In opposition, plaintiffs contend that the complaint adequately pleads reliance. They argue that defendants’ argument— that the individual defendants’ knowledge of the impropriety of the buy-backs is attributable to the Company—is without merit. They contend that if it were true, a corporation could never sue its fiduciaries for fraud, because officers and directors could always argue that their knowledge of wrongdoing must somehow be attributed to the corporation. Plaintiffs argue that the individual defendants took ultra vires actions contrary to the authorization provided by the Company’s stock option plans, and adverse to the interests of the Company, and assert that under such circumstances, the individual defendants’ knowledge cannot be imputed to the Company. They contend that taking defendants’ argument to its logical end would allow corporate officers to mislead their corporation and then escape derivative liability to the corporation precisely because they misled the corporation. The court finds that plaintiffs fail to plead facts showing reliance. As with loss causation, it may prove impossible for plaintiffs to adequately plead reliance under the facts of the case. Plaintiffs allege that “VeriSign would not have purchased VeriSign common stock at the prices it paid, had the market previously been award [sic] that the market price of Veri-Sign’s stock was artificially and falsely inflated by defendants’ misleading statements.” CAC ¶ 266. However, the CAC does not identify a single VeriSign officer or director who relied on the supposedly false or misleading financial statements in deciding to undertake the stock repurchase on VeriSign’s behalf. Plaintiffs might be able to plead reliance if they were to allege that the corporate decision-maker for the repurchase of shares had no knowledge of the alleged fraud. Here, however, plaintiffs allege that all the senior management and board members not only knew about the alleged backdating but also caused it, and that all the director defendants and Evan" }, { "docid": "15464003", "title": "", "text": "§ 10(b) claim Plaintiffs allege that the director defendants and Evan made false or misleading statements in VeriSign’s Form 10-K annual reports, filed with the SEC for fiscal years 2000 through 2005, by representing that the 10-Ks complied with GAAS in reporting stock option grants in the financial statements, CAC ¶¶ 119-123; by concealing in the SEC filings that the stock options were priced at less than the fair market price of the stock on the date of the grant, CAC ¶ 147; and by disseminating financial statements that improperly recorded and accounted for allegedly backdated option grants, thereby understating compensation expenses and overstating net income, CAC ¶¶ 148-149. In the seventeenth cause of action, plaintiffs assert that the director defendants and defendant Evan “knew or recklessly disregarded the fact that the Company’s financial statements were misleading,” and that these misrepresentations artificially inflated the value of VeriSign’s stock by understating the compensation received by the option defendants. CAC ¶ 264. They also claim that at the same time that the price of VeriSign’s stock was inflated due to improperly-accounted for stock options, defendants were “causing VeriSign to repurchase its own stock at those inflated prices starting in 2001,” thereby violating § 10(b) and Rule 10b-5, and that VeriSign was injured because it purchased its own stock at those inflated prices on the open market. CAC ¶¶ 265-266. The basis of plaintiffs’ § 10(b) claim thus appears to be that Evan and the director defendants misrepresented to the market that the stock options were being granted at fair market value as of the date of the grant; that the value of VeriSign’s stock was inflated because of those misrepresentations; and that VeriSign then purchased its own stock on the open market at that inflated price and was damaged thereby. Defendants argue that the seventeenth cause of action should be dismissed for failure to state a claim. Under § 10(b), it is unlawful “to use or employ in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or" }, { "docid": "13031369", "title": "", "text": "Defendants argue: (1) the CAC fails to allege any misrepresentation or omission of material fact pursuant to the PSLRA pleading standards and merely complains of inactionable mismanagement; (2) the CAC contains only conclusory statements regarding scienter, which do not satisfy the PSLRA’s requirements; and (3) the CAC does not adequately allege loss causation. [28-1] at 3. For the reasons discussed below, the Court finds that Plaintiffs have satisfied all applicable pleading requirements. A. False and Misleading Statements The starting point for any § 10(b) claim is materially misleading statements or omissions. Under the PSLRA, in an action premised on an untrue statement or omission of material fact, “the complaint shall specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed.” 15 U.S.C. § 78u-4(b)(l). The PSLRA’s heightened pleading requirements are intended to- prevent abusive suits where plaintiffs bring an action in hopes of using the discovery process to uncover evidence of fraud not alleged in the complaint. In re Theragenics Corp. Sec. Litig., 105 F.Supp.2d 1342, 1355 (N.D.Ga.2000) (Thrash, J.). Here, the CAC identifies numerous statements that Plaintiffs contend were false or misleading, along with specific facts to support the allegations of falsity. First, Plaintiffs allege that Defendants made false or misleading statements regarding the effectiveness of Ebix’s internal controls and financial reporting procedures. On SEC quarterly and annual reports throughout 2009 and 2010 Defendants represented that the company’s internal controls were “effective to provide reasonable assurance” that the information reported to the SEC and investors was accurate and properly recorded. [22] passim. With regard to internal controls, Defendants made misrepresentations about the soundness of the company’s billing and collection procedures, and allowance for doubtful accounts. For instance, during the earnings conference call for the fourth quarter of 2009, Defendant Raina discussed an “almost perfect customer retention rate, “excellent customer relations, and “no material collection issues over the last decade.” [22] at 93. And" }, { "docid": "15464008", "title": "", "text": "specify which of the individual defendants allegedly made the false and misleading statements. The basis of plaintiffs’ allegations of falsity appears to be that in signing the Form 10-Ks, Evan and the director defendants misrepresented to VeriSign that the information in the financial statements was accurate, which representation necessarily included an assurance that the stock options were being granted at fair market value as of the date of the grant. In the CAC, plaintiffs assert that based on information released concerning the federal investigation of VeriSign’s option grants, and also based on VeriSign’s announcement that it would be late filing its Form 10-Q for the quarter ending June 30, 2006, “[t]he question of whether or not VeriSign will issue a restatement [of financial statements] is only a matter of when, not if.” CAC ¶¶ 113-114. On November 21, 2006, the day that plaintiffs filed the CAC, VeriSign announced that it had determined the need to restate its historical financial statements for the years and interim periods from 2001 to 2005 and for the first quarter of 2006 to record additional non-cash, stock-based compensation expense related to past stock option grants. VeriSign stated that it had identified certain grants with incorrect measurement dates, without required documentation, or with initial grant dates and prices that were subsequently modified. While it is true that the allegations of backdating are not pled with particularity — with regard to, e.g., who was responsible for or authorized backdating, who knew about it, when the options were granted, and what the price of the options should have been — the misrepresentation alleged in the § 10(b) claim is directed instead toward the contents of the financial statements in VeriSign’s 10-Ks. In view of VeriSign’s announcement of the anticipated restatement of its financial statements to account for backdated options, the court finds that plaintiffs need not allege additional facts to support their claim that defendants issued false or misleading financial statements. Scienter The PSLRA requires that plaintiffs “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15" }, { "docid": "15464005", "title": "", "text": "deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe.” 15 U.S.C. § 78j(b). SEC Rule 10b-5, promulgated under the authority of § 10(b), makes it unlawful for any person to use interstate commerce (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 17 C.F.R. § 240.10b-5. To state a claim under § 10(b) and Rule 10b-5, a plaintiff must allege (1) a material omission or misrepresentation, or the use of a manipulative or deceptive device or contrivance, (2) scienter, (3) a connection with the purchase or sale of a security, (4) reliance, (5) economic loss, and (6) loss causation (a causal connection between the misrepresentation or deceptive device and the loss). See Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 341-42, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005). Defendants contend that the CAC fails to state a claim under § 10(b) because plaintiffs do not adequately plead the elements of the claim, and because the claim is time-barred. In opposition, plaintiffs assert that the CAC specifically alleges that defendants committed a variety of manipulative and deceptive acts, including backdating option grants and issuing false financial statements and proxy statements; that defendants’ scheme was in furtherance of their scheme to defraud the Company; and that defendants engaged in their fraudulent scheme knowingly or recklessly. They also assert that the claim is timely. The court finds that the motion must be GRANTED. Falsity Under the PSLRA — whether alleging that a defendant “made an untrue statement of a material fact” or alleging that a defendant “omitted to state a material fact necessary in order to make the statements made, in" }, { "docid": "11911889", "title": "", "text": "— U.S. -, 135 S.Ct. 1318, 1327, 191 L.Ed.2d 253 (2015). Defendants argue that many of their allegedly false and misleading statements were statements of opinion, and that plaintiffs have not plausibly alleged that those opinions were not honestly held. For example, they contend that Petro-bras’ alleged statements regarding the effectiveness of its internal controls are not actionable for this reason. See, e.g., CAC ¶¶ 164, 184, 198, 251, 260. However, plaintiffs allege that at the time the Company’s management- was professing its opinion that the company’s internal controls were effective, that same management was well aware of the extensive corruption in the Company’s procurement activities. See, e.g. id. 11158. These allegations are sufficient to infer that the Company disbelieved the alleged statements at the time they were made. See Varghese v. China Shenghuo Pharm. Holdings, Inc., 672 F.Supp.2d 596, 607 (S.D.N.Y.2009) (holding that plaintiffs plausibly alleged that defendant’s “internal control problems were much more serious than the picture conveyed by its filings and press releases”); In re Scottish Re Grp. Sec. Litig., 524 F.Supp.2d 370, 398 (S.D.N.Y.2007) (holding that “plaintiffs’ factual allegations, accepted as true, suggest that the Company recklessly or intentionally misled investors as to the state of its internal controls”). With respect to puffery, “[statements of general corporate optimism ... do not give rise to securities violations.” IBEW Local, 783 F.3d at 392; City of Pontiac Policemen’s & Firemen’s Ret. Sys. v. UBS AG, 752 F.3d 173, 183 (2d Cir.2014) (“It, is well-established that general statements about reputation, integrity, and compliance with ethical norms are in-actionable ‘puffery,’ meaning that they are ‘too general to cause a reasonable investor to rely upon them.’ ”). Defendants argue that many of Petrobras’ alleged statements are mere puffery. These include statements that Petrobras established a commission “aimed at assuring the highest ethical standards,”' CAC ¶ 141; that it “adopts the best corporate governance practices,” CAC ¶ 150; that it undertook to “conduct its business with transparency and integrity” and to “refuse any corrupt and bribery practices, keeping formal procedures for control and consequences of any transgressions,” CAC ¶ 165; that it" }, { "docid": "15464006", "title": "", "text": "economic loss, and (6) loss causation (a causal connection between the misrepresentation or deceptive device and the loss). See Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 341-42, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005). Defendants contend that the CAC fails to state a claim under § 10(b) because plaintiffs do not adequately plead the elements of the claim, and because the claim is time-barred. In opposition, plaintiffs assert that the CAC specifically alleges that defendants committed a variety of manipulative and deceptive acts, including backdating option grants and issuing false financial statements and proxy statements; that defendants’ scheme was in furtherance of their scheme to defraud the Company; and that defendants engaged in their fraudulent scheme knowingly or recklessly. They also assert that the claim is timely. The court finds that the motion must be GRANTED. Falsity Under the PSLRA — whether alleging that a defendant “made an untrue statement of a material fact” or alleging that a defendant “omitted to state a material fact necessary in order to make the statements made, in the light of the circumstances in which they were made, not misleading”— the complaint must specify each statement alleged to have been false or misleading, specify the reason or reasons each such statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, “state with particularity all facts on which that belief is formed.” 15 U.S.C. § 78u-4(b)(l); see also In re Silicon Graphics, 183 F.3d at 984-85 (plaintiffs must provide, in great detail, all the relevant facts forming the basis of allegations made on information and belief). In this case, defendants assert, plaintiffs’ allegation that the individual defendants falsely backdated option grants is based on information and belief, as plaintiffs do not allege that they have personal knowledge of any such backdating. Defendants contend that the only basis plaintiffs plead for this belief is the allegedly “striking” difference between the buy-in price on the nominal grant dates and the share price one month after. Defendants also argue that plaintiffs’ claims are deficient because the CAC fails to" }, { "docid": "5173865", "title": "", "text": "Leonard and Genader participated in writing or reviewing Ambac’s allegedly misleading corporate reports, press releases and SEC filings. CAC ¶348. Plaintiffs allege that because of their executive positions, Leonard and Genader were able to control the conduct of Ambac’s business, the information contained in its SEC filings and public statements about its business. CAC ¶ 346. The CAC therefore contains sufficient allegations that Leonard and Genader are “controlling person[s]” under section 20(a). Accordingly, defendants’ motion to dismiss the section 20(a) claim is denied. II. Claims under the Securities Act Plaintiffs assert claims under Sections 11, 12, and 15 of the Securities Act against Ambac, certain Individual Defendants, the Underwriter Defendants, and KPMG in connection with Ambac’s public securities offerings in February 2007 and March 2008. As discussed below, we find that plaintiffs have stated a claim with respect to Ambac’s February 2007 DISCS Offering. However, we find that plaintiffs have failed to state a claim with respect to Ambac’s March 2008 offerings because the alleged misstatements in connection with those offerings are not actionable under the “bespeaks caution” doctrine. Accordingly, defendants’ motion to dismiss the Securities Act claims is granted in part and denied in part. As a threshold issue, defendants assert that the Fed.R.Civ.P. 9(b) heightened pleading standard for fraud claims applies to the Securities Act claims and that, thus, plaintiffs must plead their claims with particularity. The Second Circuit has held that the heightened pleading requirements of Rule 9(b) apply where claims under sections 11 and 12(a)(2) of the Securities Act “sound in fraud” — i.e., where claims are premised on allegations of fraud as opposed to merely negligence. See Rombach v. Chang, 355 F.3d at 170-71. When Rule 9(b) applies, a complaint must “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993). In this case, we need not determine whether plaintiffs’ Securities Act claims against Ambac and the Individual Defendants sound in fraud, because" }, { "docid": "15464002", "title": "", "text": "cause of action for violation of § 14(a) and Rule 14a-9 should be dismissed because plaintiffs do not identify any damages causally connected to the proxy solicitations at issue; and that the nineteenth cause of action for § 20(a) control person liability should be dismissed because plaintiffs fail to plead a primary violation under the Exchange Act. Defendants also assert that each of these causes of action should be dismissed because the claims are untimely. Motions to dismiss Exchange Act claims are governed by the Private Securities Litigation Reform Act of 1995 (“PSLRA”), enacted by Congress to remedy perceived abuses in securities class action litigation. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., — U.S.-,-, 127 S.Ct. 2499, 2504, 168 L.Ed.2d 179 (2007). Among other changes, the PSLRA “re quires plaintiffs to state with particularity both the facts constituting the alleged violation, and the facts evidencing scienter.” Id. (citing 15 U.S.C. § 78u-4(b)(l), (2); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 194 & n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976)). i. § 10(b) claim Plaintiffs allege that the director defendants and Evan made false or misleading statements in VeriSign’s Form 10-K annual reports, filed with the SEC for fiscal years 2000 through 2005, by representing that the 10-Ks complied with GAAS in reporting stock option grants in the financial statements, CAC ¶¶ 119-123; by concealing in the SEC filings that the stock options were priced at less than the fair market price of the stock on the date of the grant, CAC ¶ 147; and by disseminating financial statements that improperly recorded and accounted for allegedly backdated option grants, thereby understating compensation expenses and overstating net income, CAC ¶¶ 148-149. In the seventeenth cause of action, plaintiffs assert that the director defendants and defendant Evan “knew or recklessly disregarded the fact that the Company’s financial statements were misleading,” and that these misrepresentations artificially inflated the value of VeriSign’s stock by understating the compensation received by the option defendants. CAC ¶ 264. They also claim that at the same time that the price of VeriSign’s stock was" }, { "docid": "16699468", "title": "", "text": "that Defendants have not complied with § 404(c) and the accompanying regulations of the Department of Labor. Therefore, § 404(c) is of no avail to Defendants at this time. 2. Count II: Alleged Breach of Fiduciary Duties By Imprudent Investments In Company Stock Based on Material Nonpublic Information (the “Round-Trip” Trades). In addition to the arguments regarding Count I, Defendants move to dismiss Count II on the additional ground that Plaintiff has not alleged a proper factual predicate establishing that the REI Benefits Committee knew or should have known of the round-trip trades. Plaintiffs Complaint alleges that all of Defendants’ SEC disclosure statements issued during the time that the round-trip transactions were taking place were materially false and misleading, and that Defendants knew or should have known that they were false and misleading. Defendants complain that Plaintiff makes no factual allegations to support the claim of Defendants’ knowledge. This contention is rejected. Plaintiff is not required to allege such detail in the Complaint on a breach of fiduciary duty claim. Allegations that the members of the REI Benefits Committee were simultaneously officers and directors of REI provide a sufficient basis for Plaintiffs claim that the members of the REI Benefits Committee should have known that the round-trip trades were taking place. Therefore, dismissal on this ground is not appropriate at this early stage of the proceedings. 3. Count III: Alleged Negligent Misrepresentations and Failure to Disclose Material Information Count III contains two separate but related allegations of misrepresentations. First, Plaintiff contends that Defendants made misrepresentations in the REI financial statements filed with the SEC, which statements were disclosed or available to the REI Plan participants. Second, Plaintiff contends that Defendants breached their fiduciary duties by failing to disclose in the Plan information distributed to participants that the REI Fund was a high risk investment because (1) the energy trading business engaged in by REI is inherently more risky than a regulated business and (2) the round-trip trades artificially overstated REI’s financial statements. Defendants move to dismiss both groups of allegations in this Count. Defendants argue that the misrepresentation claim based" }, { "docid": "15464007", "title": "", "text": "the light of the circumstances in which they were made, not misleading”— the complaint must specify each statement alleged to have been false or misleading, specify the reason or reasons each such statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, “state with particularity all facts on which that belief is formed.” 15 U.S.C. § 78u-4(b)(l); see also In re Silicon Graphics, 183 F.3d at 984-85 (plaintiffs must provide, in great detail, all the relevant facts forming the basis of allegations made on information and belief). In this case, defendants assert, plaintiffs’ allegation that the individual defendants falsely backdated option grants is based on information and belief, as plaintiffs do not allege that they have personal knowledge of any such backdating. Defendants contend that the only basis plaintiffs plead for this belief is the allegedly “striking” difference between the buy-in price on the nominal grant dates and the share price one month after. Defendants also argue that plaintiffs’ claims are deficient because the CAC fails to specify which of the individual defendants allegedly made the false and misleading statements. The basis of plaintiffs’ allegations of falsity appears to be that in signing the Form 10-Ks, Evan and the director defendants misrepresented to VeriSign that the information in the financial statements was accurate, which representation necessarily included an assurance that the stock options were being granted at fair market value as of the date of the grant. In the CAC, plaintiffs assert that based on information released concerning the federal investigation of VeriSign’s option grants, and also based on VeriSign’s announcement that it would be late filing its Form 10-Q for the quarter ending June 30, 2006, “[t]he question of whether or not VeriSign will issue a restatement [of financial statements] is only a matter of when, not if.” CAC ¶¶ 113-114. On November 21, 2006, the day that plaintiffs filed the CAC, VeriSign announced that it had determined the need to restate its historical financial statements for the years and interim periods from 2001 to 2005 and for the first quarter" }, { "docid": "15464050", "title": "", "text": "the option defendants. In addition, defendants contend that plaintiffs have not pled with any particularity the misrepresentations used to fraudulently procure the option grants, as required by Rule 9(b). Defendants contend that in light of these two deficiencies, the fourth cause of action fails to state a claim for rescission. In opposition, plaintiffs argue that rescission is appropriate based on defendants’ misconduct, as well as their abuse of control, and the illegal nature of the grants which made the granting of backdated stock options invalid, ultra vires acts, since such grants were not authorized or made in accordance with the terms of the Company’s shareholder-approved stock option plans. Thus, plaintiffs assert, the claim for rescission is properly pled even without an allegation of a fraudulent basis for the claim. Plaintiffs also contend that a claim for constructive fraud is not really a claim of fraud, and therefore is not required to be pled under Rule 9(b). Nevertheless, they also submit that a fair reading of the CAC shows that the claim for constructive fraud meets the requirements of Rule 9(b), which requires only that the circumstances constituting the fraud be stated with particularity, but allows state of mind to be “averred generally.” Plaintiffs point to the allegations that the Company, with the knowledge, approval, and participation of each of the individual defendants, disseminated false financial statements in Form 10-K filings. Plaintiffs also assert that the CAC lists specific fraudulently filed proxy statements, and specific false statements contained within and omitted from the proxies; and that the CAC alleges that the option defendants fraudulently caused the Company, through its Board of Directors, to issue backdated stock option grants that were in direct violation of shareholder-approved stock option plans. Plaintiffs argue that as such, the CAC states a claim for rescission. In reply, defendants reiterate that the rescission claim fails because plaintiffs have not adequately alleged the elements of either actual or constructive fraud. In response to plaintiffs’ assertion that they do not need to plead actual or constructive fraud in order to state a claim for rescission, but may simply rely" } ]

[ { "docid": "19652191", "title": "", "text": "professional reputations of its members and of the school administrators, would be disruptive of faculty discipline, and would tend to foment “controversy, conflict and dissension” among teachers, administrators, the Board of Education, and the residents of the district. Testimony was introduced from a variety of witnesses on the truth or falsity of the particular statements in the letter with which the Board took issue. The Board found the statements to be false as charged. No evidence was introduced at any point in the proceedings as to the effect of the publication of the letter on the community as a whole or on the administration of the school system in particular, and no specific findings along these fines were made. The Illinois courts reviewed the proceedings solely to determine whether the Board’s findings were supported by substantial evidence and whether, on the facts as found, the Board could reasonably conclude that appellant’s publication of the letter was “detrimental to the best interests of the schools.” Pickering’s claim that his letter was protected by the First Amendment was rejected on the ground that his acceptance of a teaching position in the public schools obliged him to refrain from making statements about the operation of the schools “which in the absence of such position he would have an undoubted right to engage in.” It is not altogether clear whether the Illinois Supreme Court held that the First Amendment had no applicability to appellant’s dismissal for writing the letter in question or whether it determined that the particular statements made in the letter were not entitled to First Amendment protection. In any event, it clearly rejected Pickering’s claim that, on the facts of this case, he could not constitutionally be dismissed from his teaching position. II. To the extent that the Illinois Supreme Court’s opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that" } ]

[ { "docid": "20692399", "title": "", "text": "for an employer to act (when it reveals information relevant to performance on the job), it is essential to determine how the speech has been taken into account. Did the school district penalize an expression of views about how the schools ought to run (forbidden) or consider an expression that revealed how the teacher manages or wants to manage her own class (permitted)? One clue, here as in Cliff v. Indianapolis Board of School Commissioners, 42 F.3d 403, 409-11 (7th Cir.1994), is to whom the statement was made. Wales did not issue a public call for change; she complained to her immediate supervisor (and to her supervisor’s supervisor) about how the conditions in her classroom affected her. Although the first amendment is not limited to speech that is broadcast to the world, see Givhan v. Western Line Consolidated School District, 439 U.S. 410, 415-16, 99 S.Ct. 693, 696-97, 58 L.Ed.2d 619 (1979), an employee’s decision to deliver the message in private supports an inference that the real concern is the employment relation— and a school district as employer may react to speech about the workplace in ways a government as regulator may not. Waters v. Churchill, 511 U.S. 661, 671-75, 114 S.Ct. 1878, 1885-88, 128 L.Ed.2d 686 (1994) (plurality opinion). (Although the lead opinion in Waters was joined by only four Justices, it is a holding of the Court under the approach of Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993-94, 51 L.Ed.2d 260 (1977).) What we said in Cliff— another case in which a teacher took issue with a school district’s approach to classroom management and argued that the first amendment prevented her employer from discharging her in response — is equally true here: “Although ... [the teacher’s] complaints addressed a subject of general interest to the public, her claim still fails as a matter of law because her expression was addressed only to the personal impact of those issues on [her]. Her speech was thus intended to benefit only her personal interests in a private dispute with her employer.” 42 F.3d at 409. And" }, { "docid": "6687456", "title": "", "text": "to any matter of political, social, or other concern to the community. Connick, 461 U.S. at 146, 103 S.Ct. at 1689. To determine whether the government’s interest in providing services efficiently outweighs the employee’s free speech rights, we consider: (1) whether the statement would create problems in maintaining discipline by immediate supervisors or harmony among coworkers; (2) whether the employment relationship is one in which personal loyalty and confidence are necessary; (3) whether the speech impeded the employee’s ability to perform her daily responsibilities; (4) the time, place, and manner of the speech; (5) the context in which the underlying dispute arose; (6) whether the matter was one on which debate was vital to informed decision-making; and (7) whether the speaker should be regarded as a member of the general public. Caruso v. DeLuca, 81 F.3d 666, 670 (7th Cir.1996) (quoting Wright v. Illinois Dept. of Children & Family Servs., 40 F.3d 1492, 1502 (7th Cir.1994)). In addition, “our inquiry must also take into account ‘the point of the speech in question: was it the employee’s point to bring wrongdoing to light? Or to raise other issues of public concern, because they are of public concern? Or was the point to further some purely private interest?’ ” Fruin, 28 F.3d at 651 (quoting Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir.1985)). In balancing Khuans’ speech and the government’s rights as employer, it’s helpful to compare the facts of Pickering with those in Connick and our recent decision in Wales. In Pickering, the Supreme Court held impermissible under the First Amendment the dismissal of a high school teacher for sending a letter to a local newspaper in connection with a proposed school tax increase. The teacher’s letter criticized the board of education for its allocation of school funds between athletics and education and its handling of bond issue proposals. The issues were the subject of public attention at the time and the teacher was exercising his rights as a citizen; for that, said the Court, he could not be fired. Pickering, 391 U.S. at 571-74, 88 S.Ct. at 1736-37. The" }, { "docid": "23578813", "title": "", "text": "Connick employed by the district court below. See, e.g., Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359 (5th Cir.2000); Lewis v. Cowen, 165 F.3d 154 (2d Cir.1999); Hulbert v. Wilhelm, 120 F.3d 648 (7th Cir.1997); Azzao v. County of Allegheny, 110 F.3d 968 (3d Cir.1997) (en banc); Int’l Soc'y for Krishna Consciousness, Inc. v. Lee, 925 F.2d 576 (2d Cir.1991), aff'd, 505 U.S. 672, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992). . Although Defendant insisted in her deposition testimony that the issue of space was irrelevant to the issue of patient privacy, she also indicated that she did not think Plaintiff was lying; rather, she thought that Plaintiff was simply wrong in her opinion. We note that even if Plaintiff’s opinion ultimately proved to be incorrect, this does not deprive her statements of First Amendment protection. See Chappel, 131 F.3d at 576 (\"A public employee is not required to prove the truth of his speech in order to secure the protections of the First Amendment.\") (citations omitted). . Furthermore, it is unclear how Dr. Harris received a copy of the memo, inasmuch as Plaintiffs listed recipients were Defendant, Alice Gray, Paul Blackwell, and M. Russ. To the extent that Dr. Harris only received it because one or more of the recipients sent him a copy, Defendant could not have relied upon any disturbance that could not reasonably be traced back to Plaintiff, who limited her audience. See Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1054-55 (6th Cir.2001) (rejecting the school's argument that the teacher’s speech had impacted the \"efficient operation of the school and a harmonious environment” because her speech had been pre-approved by the school board and, thus, the \"disruptive consequences of the employee speech can be traced back to the government's express decision permitting the employee to engage in that speech”)." }, { "docid": "20692392", "title": "", "text": "EASTERBROOK, Circuit Judge. The Dorothy deLacey Early Childhood Education Center is among a handful of schools in the United States that permit even the youngest pupils to pick their own fields of study. The school district that operates the deLacey Center tells us that if a pupil shows an interest in rabbits, the teacher must design a curriculum for that pupil around rabbits — while other kids in the same classroom try to learn reading and arithmetic through materials on fire engines and dinosaurs. Since its founding the Center has catered to children with special educational needs. In the fall of 1992 the deLacey Center became an “inclusion facility.” Pupils with learning disabilities or behavior problems were mixed with those whose challenges were less severe. Recognizing that this would make things tough for teachers (and other pupils), the school assigned an aide to every classroom, and it invited parents to help out in the classrooms. Before long, the school district named Jane Schumacher to replace the de-Lacey Center’s principal. Schumacher called a retreat at which the teachers were given instruction in dealing with the new situation. When the retreat took place in November, however, Colleen Wales, a kindergarten teacher, was at home, overcome by the stress of coping with hard-to-manage kids in her classroom. Wales was not happy with the turn of events at the deLacey Center. During the 1991 — 92 school year Wales had been a part-time language instructor. Wales found the work fulfilling, and the school district thought well enough of her efforts to give her a full-time appointment, though in a different role. By November 1992, however, it seemed to Wales that her time was devoted more to self-defense from hyperactive kids than to instruction. Wales called for assistance in managing her class more often than did other teachers. She succeeded in having one child removed from class and sent elsewhere. Schumacher turned down Wales’s request for the removal of a second child. Wales promptly took a medical leave and sent Schumacher a lengthy memorandum protesting her management of the deLacey Center. Its final two paragraphs" }, { "docid": "6687459", "title": "", "text": "The Supreme Court found that with the exception of the question about pressure to work in political campaigns, the questionnaire involved private, not public concerns— the focus of the questions was not to evaluate the performance of the office but instead “to gather ammunition for another round of controversy with her superiors.” Connick, 461 U.S. at 148, 103 S.Ct. at 1690. Even though one statement involved a matter of public concern, Myers’ termination was not a First Amendment violation. In performing a Pickering balance, the Court found any harm to public debate outweighed by the government’s interest as an employer. The questionnaire interfered with working relationships and potentially undermined confidence in Myers’ supervisors. The time, place, and manner of the distribution required not only Myers to leave her work but others to do the same to complete the questionnaire — “the fact that Myers, unlike Pickering, exercised her rights to speech at the office supports Connick’s fears that the functioning of his office was endangered.” Connick, 461 U.S. at 153, 103 S.Ct. at 1693. Finally, in Wales, a kindergarten teacher sent her supervising principal a memorandum protesting management of the school, in particular the lack of procedures for disciplining students. The memo led to the school board’s decision not to renew the teacher’s contract. When the teacher claimed she was fired in violation of her right to free speech, we recognized that although how the school was managed was a question of public importance, her memo was closer to the “private” than the “public” end of the spectrum and the district could terminate a teacher who did not share its educational philosophy. Wales, 120 F.3d at 84-85. One good clue to the true nature of Wales’ speech was the person to whom her statements were made; she did not issue a public call to change, but instead complained to supervisors. Id. at 85. We turn now to Khuans’ expressions of her rights to free speech. First, in December 1993 she went to Principal Steyskal and relayed to him the special education staffs “difficulties” with Zielke, which Khuans’ complaint indicates were" }, { "docid": "20692397", "title": "", "text": "a dialog between Wales and Schumacher about how to deal with disruptive pupils: Wales wanted them to be removed (so that someone else would have to cope with them) or disciplined, and Schu-macher wanted Wales to handle them better in order to promote the education of all of the school district’s charges. “[PJlaintiff and Schumacher did not see eye-to-eye on how, or who was, to handle behavioral problems in the classroom. The memorandum is a clear expression of plaintiff’s position on that matter.” Give-and-take is normal in employment, and the district court thought that the Constitution does not arm one participant with a right to damages if the other prevails. How the deLacey Center is managed is undoubtedly a question of public importance. If a newspaper ran an editorial arguing that the deLacey Center should not be an “inclusion facility,” or that disruptive kids should be removed from classrooms so that others may learn, that expression would be protected by the first amendment. School boards are elected precisely because parents take a vital interest in such matters, legitimate subjects of public debate and political decision. It follows, Wales believes, that under the approach of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the school district must put her memo out of mind when deciding whether she remains on the faculty. See also Hulbert v. Wilhelm, 120 F.3d 648, 652-654 (7th Cir.1997). We grant the premise that the speech concerns an issue of potential public interest but believe that the conclusion does not follow. A school is entitled to insist that its staff carry out the educational philosophy espoused by the elected school board and the principal the board appoints. A Montessori school need not employ teachers who hanker for stern discipline. A memorandum proclaiming support for a disfavored educational approach (removing or disciplining. disruptive kids) may be useful to a school in determining how a teacher runs her classroom. When a communication is simultaneously protected speech (as a call to the public to change the way the schools run) and a sound reason" }, { "docid": "6687460", "title": "", "text": "in Wales, a kindergarten teacher sent her supervising principal a memorandum protesting management of the school, in particular the lack of procedures for disciplining students. The memo led to the school board’s decision not to renew the teacher’s contract. When the teacher claimed she was fired in violation of her right to free speech, we recognized that although how the school was managed was a question of public importance, her memo was closer to the “private” than the “public” end of the spectrum and the district could terminate a teacher who did not share its educational philosophy. Wales, 120 F.3d at 84-85. One good clue to the true nature of Wales’ speech was the person to whom her statements were made; she did not issue a public call to change, but instead complained to supervisors. Id. at 85. We turn now to Khuans’ expressions of her rights to free speech. First, in December 1993 she went to Principal Steyskal and relayed to him the special education staffs “difficulties” with Zielke, which Khuans’ complaint indicates were that “Zielke was often not found on school property during her scheduled hours, her staff found her difficult to communicate with, she would depart from established legal procedures for special education, etc.” According to Khuans’ complaint, she sought to protect her students’ rights to a free appropriate public education as set forth in the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., (IDEA) by informing Steyskal at that meeting, and Bever at a later date, that Zielke failed to give parents notification of educational planning meetings, which parents have a right to attend; predetermined the classification of certain children prior to a diagnostic team’s input; changed certain students’ placement and services without required diagnostic team input or parental notification; and disregarded the individualized educational programs of special education children transferred to Sahs. Second, when Khuans met with Superintendent Nelson, she “inquired of Nelson about the propriety of a certain change of services sought to be implemented by Zielke, and which had apparently been approved by Nelson,” and showed Nelson his memo reflecting" }, { "docid": "20692403", "title": "", "text": "office is underpaid and entitled to steal what he can.” Because public employers do, or can be made to appear to, react to non-disruptive speech, good and bad employees alike can threaten to impose costs on public employers who demote or fire them. Wales wants Schumacher and other managers of the School District to pay her substantial amounts of money. Principals and other public employees are not compensated for taking these risks, and they are not necessarily indemnified when they lose. Faced with both a threat to the pocketbook and the substantial diversion of time from the principal task at hand (recall that this is Wales’s third challenge to her discharge, itself the culmination of a lengthy process), many a supervisor will let things be. Then the people who suffer are the children, deprived of the best education the school district can provide. That was not the goal of the Supreme Court in Pickering, but it is an inevitable consequence; it is not possible to protect public employees’ right to speak their minds without creating incentives that threaten the quality of services agencies deliver to the public. The lead opinion in Waters recognizes this, but the Court has so far been unable to develop a set of rules that curtails the problem. Open-ended balancing approaches of the sort announced in Pickering create unavoidable risks and costs for well-intentioned public employers, risks that the doctrine of qualified immunity reduces but not to zero. As an inferior tribunal, our part is to apply the ■upreme Court’s approach, fuzzy though it may be. Our best judgment is that Wales’s memorandum is closer to the “private” than to the “public” end of the spectrum, even though it has elements of both. A school district is entitled to put in its classrooms teachers who share its educational philosophy. This does not mean that Wales is a bad teacher; it reflects only the school district’s judgment that she was not well suited to an “inclusion facility” — coupled with the fact that, as an untenured employee, Wales was not entitled to displace another teacher elsewhere in" }, { "docid": "20692393", "title": "", "text": "the teachers were given instruction in dealing with the new situation. When the retreat took place in November, however, Colleen Wales, a kindergarten teacher, was at home, overcome by the stress of coping with hard-to-manage kids in her classroom. Wales was not happy with the turn of events at the deLacey Center. During the 1991 — 92 school year Wales had been a part-time language instructor. Wales found the work fulfilling, and the school district thought well enough of her efforts to give her a full-time appointment, though in a different role. By November 1992, however, it seemed to Wales that her time was devoted more to self-defense from hyperactive kids than to instruction. Wales called for assistance in managing her class more often than did other teachers. She succeeded in having one child removed from class and sent elsewhere. Schumacher turned down Wales’s request for the removal of a second child. Wales promptly took a medical leave and sent Schumacher a lengthy memorandum protesting her management of the deLacey Center. Its final two paragraphs convey the tenor: Under my contractual obligations with the district, I was employed to serve as a teacher, not as a guard in a detention room. In addition, I have professional and legal obligations to ensure the safety of my students and to provide them with a positive learning environment. This cannot be accomplished under the present lack of procedure and/or lack of complying with established procedure in terms of discipline for students who cannot or will not comply with accepted norms of behavior in a regular classroom setting. In addition, I do not have to expect that being a punching bag for a student is an assigned job task of a teacher. As such, I would like some form of written documentation and/or clarification, consistent with state statute, as to what actions/procedures will be enacted in order to perform/maintain discipline within the classroom as well as what actions will be taken to ensure that other students, as well as myself, will not be subjected to continued physical abuse without repercussions. As an employee of" }, { "docid": "22215470", "title": "", "text": "154, 103 S.Ct. 1684 (holding that the First Amendment does not require an employer to “tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships” (emphasis added)); McGill v. Board of Educ., 602 F.2d 774, 777 (7th Cir.1979); cf. Pickering, 391 U.S. at 572-73, 88 S.Ct. 1731 (noting that the employer school’s interest in limiting a teacher’s speech is not great when those public statements “are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally”) (footnote omitted). Finally, to the extent that the plaintiffs’ speech occurred in private — such as in the principal’s office, or informally within the walls of the school — the potentially disruptive manner of that speech again weighs in favor of the school board’s interest in limiting it. See Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 415 n. 4, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979) (noting that the time, manner, and place in which private speech is delivered may be a significant factor in the determination whether the employer’s efficiency is threatened by that speech). On balance, however, the plaintiffs’ speaking out on discipline, choice of educational approaches, and potential violations of the law by the school district is of sufficient public importance to outweigh the employer’s interest in limiting that speech. Moreover, the school board has essentially conceded the point. See Appel-lee’s Br. at 26. Thus, we hold that the plaintiffs’ speech was protected by the First Amendment. 2. Adverse Action The school board does not dispute that the involuntary transfer of the plaintiffs would have a sufficient chilling effect to qualify as an adverse action under the First Amendment retaliation analysis. See Appellee’s Br. at 26. This position is supported by our case law. See, e.g., Boger, 950 F.2d at 321-23. 3. Motivating Factor The most problematic aspect of the plaintiffs’ First Amendment claim is showing that their speech was a substantial or motivating" }, { "docid": "20692404", "title": "", "text": "incentives that threaten the quality of services agencies deliver to the public. The lead opinion in Waters recognizes this, but the Court has so far been unable to develop a set of rules that curtails the problem. Open-ended balancing approaches of the sort announced in Pickering create unavoidable risks and costs for well-intentioned public employers, risks that the doctrine of qualified immunity reduces but not to zero. As an inferior tribunal, our part is to apply the ■upreme Court’s approach, fuzzy though it may be. Our best judgment is that Wales’s memorandum is closer to the “private” than to the “public” end of the spectrum, even though it has elements of both. A school district is entitled to put in its classrooms teachers who share its educational philosophy. This does not mean that Wales is a bad teacher; it reflects only the school district’s judgment that she was not well suited to an “inclusion facility” — coupled with the fact that, as an untenured employee, Wales was not entitled to displace another teacher elsewhere in the school district. Matching a person’s skills to the job at hand is a difficult yet vital task for any employer, and the first amendment did not require defendants to retain at the deLacey Center someone they believed was not best for the children. Affirmed." }, { "docid": "20692398", "title": "", "text": "such matters, legitimate subjects of public debate and political decision. It follows, Wales believes, that under the approach of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the school district must put her memo out of mind when deciding whether she remains on the faculty. See also Hulbert v. Wilhelm, 120 F.3d 648, 652-654 (7th Cir.1997). We grant the premise that the speech concerns an issue of potential public interest but believe that the conclusion does not follow. A school is entitled to insist that its staff carry out the educational philosophy espoused by the elected school board and the principal the board appoints. A Montessori school need not employ teachers who hanker for stern discipline. A memorandum proclaiming support for a disfavored educational approach (removing or disciplining. disruptive kids) may be useful to a school in determining how a teacher runs her classroom. When a communication is simultaneously protected speech (as a call to the public to change the way the schools run) and a sound reason for an employer to act (when it reveals information relevant to performance on the job), it is essential to determine how the speech has been taken into account. Did the school district penalize an expression of views about how the schools ought to run (forbidden) or consider an expression that revealed how the teacher manages or wants to manage her own class (permitted)? One clue, here as in Cliff v. Indianapolis Board of School Commissioners, 42 F.3d 403, 409-11 (7th Cir.1994), is to whom the statement was made. Wales did not issue a public call for change; she complained to her immediate supervisor (and to her supervisor’s supervisor) about how the conditions in her classroom affected her. Although the first amendment is not limited to speech that is broadcast to the world, see Givhan v. Western Line Consolidated School District, 439 U.S. 410, 415-16, 99 S.Ct. 693, 696-97, 58 L.Ed.2d 619 (1979), an employee’s decision to deliver the message in private supports an inference that the real concern is the employment relation— and a school" }, { "docid": "8831906", "title": "", "text": "Amendment right to employ classroom teaching methodology of choice); Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794, 795 (5th Cir.1989) (teacher’s choice of supplemental reading list not constitutionally-protected speech); see also Monteiro, 158 F.3d at 1030 n. 13 (“Although the complaint does not refer to the involvement of teachers in the teaching of the literary works at issue or in the formation of the curriculum, it is likely that claims such as these, and their outcomes, could have significant effect on the First Amendment rights of teachers.”). In order for the speaker to have the opportunity to speak as the government, the speaker must gain favor with the populace and survive the electoral process. See Southworth, 120 S.Ct. at 1357 (“When the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position.”). The LAUSD school board is elected by the public, and until its current members are voted out of office, they “speak” for the school district through the policies they adopt. Furthermore, in the case of the typical school board, influence from the community does not end at the ballot box, but continues through publicly-held school board meetings at which parents and other interested parties may express satisfaction or dissatisfaction with the school board’s policies or “speech.” This is reflected in this case by Memorandum No. Ill’s acknowledgment that community groups had participated in a review of the posters and materials LAUSD sent to each of the schools for Gay and Lesbian Awareness month. The district court in this case noted that “[j]ust as a school could prohibit a teacher from posting racist material on a bulletin board designated for Black History Month, [LAUSD] may prohibit [Downs] from posting intolerant materials during ‘Gay and Lesbian Awareness Month.’ ” The Supreme Court has recognized a similar principle in the context of the government’s ability to regulate its employees’ speech and discipline those employees" }, { "docid": "11754789", "title": "", "text": "a literature class can’t use Cry, The Beloved Country instead, even if Paton’s book better suits the instructor’s style and point of view; a math teacher can’t decide that calculus is more important than trigonometry and decide to let Hipparchus and Ptolemy slide in favor of Newton and Leibniz. Beyond the fact that teachers hire out their own speech and must provide the service for which employers are willing to pay — which makes this an easier case for the employer than Garcetti, where speech was not what the employee was being paid to create — is the fact that the pupils are a captive audience. Education is compulsory, and children must attend public schools unless their parents are willing to incur the cost of private education or the considerable time commitment of home schooling. Children who attend school because they must ought not be subject to teachers’ idiosyncratic perspectives. Majority rule about what subjects and viewpoints will be expressed in the classroom has the potential to turn into indoctrination; elected school boards are tempted to support majority positions about religious or patriotic subjects especially. But if indoctrination is likely, the power should be reposed in someone the people can vote out of office, rather than tenured teachers. At least the board’s views can be debated openly, and the people may choose to elect persons committed to neutrality on contentious issues. That is the path Monroe County has chosen; Mayer was told that she could teach the controversy about policy toward Iraq, drawing out arguments from all perspectives, as long as she kept her opinions to herself. The Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials. To the extent that James v. Board of Education, 461 F.2d 566 (2d Cir.1972), and Cockrel v. Shelby County School District, 270 F.3d 1036, 1052 (6th Cir.2001), are to the contrary, they are inconsistent with later authority and unpersuasive. Piggee supports the school district rather than Mayer. An instructor at a community college, Piggee had argued that the first amendment allowed her to promote" }, { "docid": "23529470", "title": "", "text": "it ignores the best of Love-Lane’s evidence and states the facts in the light most favorable to the Board and Martin. This mistaken approach, of course, allows the dissent to say that this case involves nothing more than a superintendent’s “decision to separate ... two administrators embroiled in a personality conflict.” Post at 790. This case involves much more than a personality conflict when the facts are viewed, as they must be, in Love-Lane’s favor: it involves a superintendent who demoted an assistant principal because she spoke out against race discrimination in discipline at a public school. III. A. We turn first to the district court’s rejection of Love-Lane’s claim, asserted under 42 U.S.C. § 1983, that the Board and Martin violated her right to free speech guaranteed by the First Amendment to the Constitution of the United States. The government may not retaliate against a public employee who exercises her First Amendment right to speak out on a matter of public concern. See Pickering v. Bd. of Educ., 391 U.S. 563, 573, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). This means, for example, that “[a] state may not dismiss 'a public school teacher because of the teacher’s exercise of speech protected by the First Amendment.” Stroman v. Colleton County Sch. Dist., 981 F.2d 152, 155-56 (4th Cir.1992). The First Amendment does not protect all speech by public employees. “Personal grievances, complaints about conditions of employment, or expressions about other matters of personal interest” fall outside the First Amendment because they are not matters of public concern. Id. at 156. Even speech on a matter of public concern does not automatically qualify for First Amendment protection: the speaker’s interest in free expression is “tempered by the government’s interest in governmental effectiveness, efficiency, order, and the avoidance of disruption.” McVey v. Stacy, 157 F.3d 271, 277 (4th Cir.1998). Retaliatory employment action violates a public employee’s right to free speech under the following conditions. First, the speech must relate to a matter of public concern. Id. Second, the “employee’s interest in First Amendment expression must outweigh the employer’s interest in efficient operation" }, { "docid": "12944098", "title": "", "text": "146-47, 103 S.Ct. at 1690. If the employee is speaking as an employee, on matters that address her personal employment conditions, the First Amendment does not protect her from an adverse employment action for engaging in that speech. Ayoub, 927 F.2d at 837. In Ayoub, the Fifth Circuit considered a professor’s claim that he had been discriminated against in retaliation for his complaints about the disparate pay scale applied to foreign-born professors at a public university. The court found that Ayoub’s speech did not involve a matter of public concern. The court noted that the content of Ayoub’s complaints concerned the application of the alleged two-tier pay system to him and that he “never attempted to air his complaints in a manner that would call the public’s attention to the alleged wrong.” Id. at 837. The court concluded that Ayoub was not retaliated against, if at all, for speaking as a citizen on a matter of general or public concern “not tied to a personal employment dispute.” Id. In Wales v. Board of Educ. of Community Unit Sch. Dist. 300, 120 F.3d 82 (7th Cir. 1997), the Seventh Circuit recently considered complaints similar to those at issue in this case and followed the approach of the Fifth Circuit in Ayoub. Wales was a kindergarten teacher at a public school serving children with special education needs. Wales complained, in writing, about the principal’s management of the school, the lack of discipline in the school, and the problems it caused for teacher and student safety as well as effective teaching. Id. at 82-83. The principal gave Wales a negative evaluation and the school board did not renew her contract. On an appeal from a grant of summary judgment in favor of the school board, the court framed the question as follows: Did the school district penalize an expression of views about how the schools ought to run (forbidden) or consider an expression that revealed how the teacher manages or wants to manage her own class (permitted)? One clue ... is to whom the statement was made____ Although the first amendment is not" }, { "docid": "11754786", "title": "", "text": "because military intervention in Iraq is an issue of public importance, Mayer had a right to express her views on the subject, but that the right is qualified in the workplace by the requirement that expression not disrupt an employer’s business unduly. This is the method of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). After concluding that the employer’s interests predominate, the district court gave judgment for the defendants. Mayer contends on appeal that the balance under Pickering weighs in her favor. For their part, defendants contend that interest balancing plays no role when the speech in question is part of the employee’s official duties. See Garcetti v. Ceballos, — U.S. -, -, 126 S.Ct. 1951, 1960, 164 L.Ed.2d 689 (2006) (“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”); Mills v. Evansville, 452 F.3d 646 (7th Cir.2006). Mayer concedes that the current-events session, conducted during class hours, was part of her official duties; if Garcetti supplies the rule of decision, then the school district prevails without further ado. Mayer insists, however, that principles of academic freedom supersede Garcetti in classrooms, and she relies on a statement in Piggee v. Carl Sandburg College, 464 F.3d 667, 672 (7th Cir.2006), that Garcetti was “not directly relevant” to the college instructor’s speech in that case. Whether teachers in primary and secondary schools have a constitutional right to determine what they say in class is not a novel question in this circuit. We held in Webster v. New Lenox School District No. 122, 917 F.2d 1004 (7th Cir.1990), that public-school teachers must hew to the approach prescribed by principals (and others higher up in the chain of authority). Ray Webster wanted to teach his social-studies class that the world is much younger than the four-billion-year age given in the textbook the class was using; he proposed that the pupils consider the possibility of divine creation as an alternative to the scientific understanding." }, { "docid": "20692396", "title": "", "text": "arbitrator concluded that the lack of consultation was Wales’s fault and sustained the discharge. Next Wales filed a complaint with the Office of Civil Rights at the Department of Education, contending that the school district retaliated against her because she stood up for the rights of the pupils. The Office conducted an investigation, concluded that the claim was unfounded, and closed the file. In this litigation, Wales offers a third theory: that the District fired her on account of the memo, which she characterizes as speech protected by the first amendment. The district court granted summary judgment to the District — not because the memo was unrelated to the discharge (though the record does not establish any link), or because it caused relations to deteriorate and therefore was unduly disruptive (though Wales’s request for an evaluator other than Schumacher implies that in her view the memo had the potential to create such a baleful effect), but because the memo was not protected speech in the first place. The judge read the memorandum as part of a dialog between Wales and Schumacher about how to deal with disruptive pupils: Wales wanted them to be removed (so that someone else would have to cope with them) or disciplined, and Schu-macher wanted Wales to handle them better in order to promote the education of all of the school district’s charges. “[PJlaintiff and Schumacher did not see eye-to-eye on how, or who was, to handle behavioral problems in the classroom. The memorandum is a clear expression of plaintiff’s position on that matter.” Give-and-take is normal in employment, and the district court thought that the Constitution does not arm one participant with a right to damages if the other prevails. How the deLacey Center is managed is undoubtedly a question of public importance. If a newspaper ran an editorial arguing that the deLacey Center should not be an “inclusion facility,” or that disruptive kids should be removed from classrooms so that others may learn, that expression would be protected by the first amendment. School boards are elected precisely because parents take a vital interest in" }, { "docid": "11754785", "title": "", "text": "EASTERBROOK, Chief Judge. Deborah Mayer worked for one year as a probationary elementary-school teacher in Monroe County, Indiana. When the school district did not renew her contract for a second year, Mayer filed this suit under 42 U.S.C. § 1983, maintaining that the school system let her go because she took a political stance during a current-events session in her class, thus violating the first amendment. The district court granted summary judgment to the defendants, so we must accept Mayer’s version of events — which is that she answered a pupil’s question about whether she participated in political demonstrations by saying that, when she passed a demonstration against this nation’s military operations in Iraq and saw a placard saying “Honk for Peace”, she honked her car’s horn to show support for the demonstrators. Some parents complained, and the school’s principal told all teachers not to take sides in any political controversy. Mayer believes that this incident led the school system to dismiss her; we must assume that this is so. The district court concluded that, because military intervention in Iraq is an issue of public importance, Mayer had a right to express her views on the subject, but that the right is qualified in the workplace by the requirement that expression not disrupt an employer’s business unduly. This is the method of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). After concluding that the employer’s interests predominate, the district court gave judgment for the defendants. Mayer contends on appeal that the balance under Pickering weighs in her favor. For their part, defendants contend that interest balancing plays no role when the speech in question is part of the employee’s official duties. See Garcetti v. Ceballos, — U.S. -, -, 126 S.Ct. 1951, 1960, 164 L.Ed.2d 689 (2006) (“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”); Mills v. Evansville, 452 F.3d 646 (7th Cir.2006). Mayer concedes that the current-events session," }, { "docid": "12944099", "title": "", "text": "Community Unit Sch. Dist. 300, 120 F.3d 82 (7th Cir. 1997), the Seventh Circuit recently considered complaints similar to those at issue in this case and followed the approach of the Fifth Circuit in Ayoub. Wales was a kindergarten teacher at a public school serving children with special education needs. Wales complained, in writing, about the principal’s management of the school, the lack of discipline in the school, and the problems it caused for teacher and student safety as well as effective teaching. Id. at 82-83. The principal gave Wales a negative evaluation and the school board did not renew her contract. On an appeal from a grant of summary judgment in favor of the school board, the court framed the question as follows: Did the school district penalize an expression of views about how the schools ought to run (forbidden) or consider an expression that revealed how the teacher manages or wants to manage her own class (permitted)? One clue ... is to whom the statement was made____ Although the first amendment is not limited to speech that is broadcast to the world, an employee’s decision to deliver the message in private supports an inference that the real concern is the employment relation — and a school district as employer may react to speech about the workplace in ways a government as regulator may not. Id. at 84 (internal citations omitted) (emphasis in original). The court concluded that although the teacher’s complaints addressed subjects of general interest to the public, her claim still failed as a matter of law because her expression was addressed only to the personal impact of those issues on her. Id. In Wales, the court examined an earlier opinion, Cliff v. Board of Sch. Comm’rs, 42 F.3d 403 (7th Cir.1994), which also involved complaints similar to those Carey relies upon as the basis of her claim. Cliff, a high school teacher, filed a retaliatory discharge claim under the First Amendment when the school district did not renew her employment contract at the end of the school year. Id. at 408. Cliff had made several complaints" } ]

[ { "docid": "22655696", "title": "", "text": "choice of label, legislatures could indicate whether a judge or a jury must make the relevant factual determination. History does not preclude legislatures from making this decision. And, as I argued in Part I, supra, allowing legislatures to structure sentencing in this way has the dual effect of enhancing and giving meaning to the Sixth Amendment’s jury trial right as to core crimes, while affording additional due process to defendants in the form of sen tencing hearings before judges — hearings the majority's rule will eliminate for many. Is there a risk of unfairness involved in permitting Congress to make this labeling decision? Of course. As we have recognized, the “tail” of the sentencing fact might “wa[g] the dog of the substantive offense.” McMillan, supra, at 88. Congress might permit a judge to sentence an individual for murder though convicted only of making an illegal lane change. See ante, at 306 (majority opinion). But that is the kind of problem that the Due Process Clause is well suited to cure. McMillan foresaw the possibility that judges would have to use their own judgment in dealing with such a problem; but that is what judges are there for. And, as Part I, supra, makes clear, the alternatives are worse — not only practically, but, although the majority refuses to admit it, constitutionally as well. Historic practice, then, does not compel the result the majority reaches. And constitutional concerns counsel the opposite. Ill The majority also overlooks important institutional considerations. Congress and the States relied upon what they believed was their constitutional power to decide, within broad limits, whether to make a particular fact (a) a sentencing factor or (b) an element in a greater crime. They relied upon McMillan as guaranteeing the constitutional validity of that proposition. They created sentencing reform, an effort to change the criminal justice system so that it reflects systematically not simply upon guilt or innocence but also upon what should be done about this now-guilty offender. Those efforts have spanned a generation. They have led to state sentencing guidelines and the Federal Sentencing Guidelines system. E.g.," } ]

[ { "docid": "17984621", "title": "", "text": "consuming. But because issues in isolated cases are complicated and time consuming does not mean that they cannot be managed in a way that is both effective and fair. There is nothing in this Court’s experience with juries that would suggest that a jury cannot make very sophisticated .sentencing decisions with proper guidance and instruction by the Court. D. Unique Cases In limited instances, jury factfinding will require specialized procedures. The proper administration of these cases will reside with the district court judges who have vast experience in tailoring the process to ensure fair and efficient outcomes. The Court anticipates that, in particular, special problems will arise in future cases involving relevant conduct. Instances will occur where evidence of relevant conduct will not be probative of the crime charged and will be highly prejudicial. In such cases, the evidence cannot be admitted during the guilt phase of the trial, thus forcing a second phase for presentation of sentencing evidence to the jury. These cases should be rare. Indeed, since the Government must now establish all facts necessary to support a sentencing enhancement beyond a reasonable doubt, wherever possible the Government should simply charge the relevant conduct under applicable law in the indictment, rather than seek to raise it solely at sentencing. With respect to those cases in which a bifurcated proceeding is required, the Court notes that district court judge’s are quite familiar with this process. For example, punitive damage cases routinely require such a procedure. District court judges clearly can adjust without difficulty to the needs presented by such cases. The Court finds that the Guidelines are constitutional if implemented in accordance with this four-point Plan. The Plan will maintain the workablity of the Guidelines, while addressing the concerns expressed in Blakely that judicial factfinding by a lower standard of proof can be inconsistent with a defendant’s rights under the Sixth Amendment. As noted in Blakely, the Supreme Court’s goal was not to eradicate sentencing guideline systems, but to ensure that they are implemented in a manner consistent with each defendant’s Sixth Amendment rights. Blakely, at 2539-40. The Court" }, { "docid": "3033956", "title": "", "text": "the Guidelines. These rulings, however, all pre-dated Blakely’s expansive reading of Apprendi. Where a Supreme Court holding effectively modifies an earlier ruling of the Circuit, this court is obviously required to follow the commands of the Supreme Court. That is precisely what has happened here. Accordingly, the Court must give effect to Blakely in deciding the Sixth Amendment issue that the defendant has raised here. II. The Federal Guidelines Suffer From the Same Constitutional Defect as the Washington State Guidelines. The Department’s next argument is an attempt to distinguish the Federal Sentencing Guidelines on the basis that “the Commission-promulgated Federal Guidelines operate differently from Washington State’s legislatively enacted guidelines.” The Department’s argument then develops in two parts. First, the Department maintains that the “federal Guidelines were never intended to operate on the same footing as the statutory máximums.” And, second, the Department contends that the fact that the Guidelines were promulgated by the “constitutionally unique” Sentencing Commission distinguishes the federal system from Washington’s guidelines. Neither claim is valid. A. The Guidelines Are Equivalent to Statutory Máximums. The federal guidelines suffer from the same infirmity as the Washington guidelines. Under the Washington scheme offenses were subject categorically to maximum sentences: life maximum for a Class A felony, ten years maximum for a Class B felony, and five years maximum for a Class C felony. Within these categorical máxi-mums, specific crimes were subject to a “presumptive sentencing range.” This smaller range was the range of possible sentences absent a judicial finding of “substantial and compelling reasons justifying an exceptional sentence.” The Supreme Court determined that the “relevant ‘statutory maximum’ ” was “the maximum [the judge] may impose without any additional findings.” Absent additional fact-finding, the judge could not sentence above this level, but since the statute did not require a jury to find these facts, the scheme violated the Sixth Amendment. The Federal Sentencing Guidelines operate in the same way. Under the Guidelines, some statutes impose a broad maximum, and the Guidelines call for a narrower range within that maximum based on the specific offense. As the Supreme Court has clearly held," }, { "docid": "5217118", "title": "", "text": "implications; (2) that Blakely unquestionably applies to the Federal Sentencing Guidelines; and (3) that the Guidelines are rendered unconstitutional in their entirety by that application. While Blakely has gone a long way to make the sentencing system more fair, and to reinvigorate the role of juries in the process, it is inconceivable that the system now required by the decision is at all consistent with anything contemplated by the drafters of the Sentencing Reform Act (“SKA”), Pub.L. No. 98-473, 98 Stat. 1837 (1987), or of the Guidelines. To literally engraft a system of jury trials involving fact-finding enhancements onto the Sentencing Guideline is to create a completely different regime than that comprehensive sentencing system envisioned by the legislation’s drafters or the drafters of the Guidelines. If such a system is required to give full effect to the Constitution’s jury trial guarantee then the entire sentencing system has to be recast. The constitutional sentencing pieces cannot be cobbled together by judges on a case by case basis. As a backdrop to the latter discussion, I will describe the Guidelines’ genesis out of the failure to pass a federal criminal code, how such a federal code would have increased the power of the jury as Blakely requires, how the Apprendi-Blakely line of cases evolved, the facts of the four cases before me, and then I will turn to the resolution of the specific issues described above. I. INTRODUCTION Substantive federal criminal law has always been like a patchwork quilt, consisting, for the most part, of broadly defined offenses with wide punishment ranges. The jury’s role has been to answer general questions' — whether the government has proved the elements of the broadly defined offense beyond a reasonable doubt, for example' — in a setting with the full panoply of constitutional safeguards. If the defen dant was found guilty, judges had a very different role than that of jurors, at least until the 1980s. They enjoyed wide discretion to sentence within the broad punishment ranges, based on a host of issues, including rehabilitation, almost like a doctor or social worker exercising clinical judgment." }, { "docid": "21622442", "title": "", "text": "a judge alone may decide the facts bearing on mandatory minimum sentences. Harris, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524. . Unquestionably, one can imagine legislative enactments that would co-opt the jury's role by completely restructuring traditional crime definitions to impose very high maximum punishments for very minimally-defined criminal acts (say, a maximum of life imprisonment for conduct that harmed another, intentionally or otherwise), and then left issues that traditionally had defined very different offenses for resolution at sentencing by the judge (for example, whether the defendant caused serious injury or death, used a weapon, or inflicted the harm intentionally, recklessly or negligently). While some judges might find drawing the line between such a radical undermining of the jury system and a system that substitutes guided for unguided discretion within traditional sentencing categories uncomfortably subjective, most of those who have sat on the Supreme Court throughout its history would find such an exercise the essence of the judicial role, much like distinguishing between reasonable and unreasonable searches, cruel and not-so-cruel punishments, speedy and unduly delayed trials, or reasonable and unreasonable time, place, and manner restrictions on freedom of speech, among many other examples. Such line-drawing, even if at the borders it must inevitably draw on the individual judgment of appointed judges, is infinitely preferable to applying formulaic rules in defiance of common sense or practical effect. For purposes of this case, it is sufficient to note that the Guidelines do not remotely constitute such a radical reworking of traditional approaches to defining crimes. . See United States v. Mueffleman, 327 F.Supp.2d 79, 90-94, No. 01-CR-10387, 2004 WL 1672320, at *8-*11 (D.Mass. July 26, 2004) (Gertner, J.); United States v. Croxford, 324 F.Supp.2d 1255, 1259-61 (D.Utah 2004) (Cassell, J.); but see Ameline, 376 F.3d at 981-82 (holding that procedural aspects of the guidelines regime are severable). . A different severability issue, whether the Guidelines, if unconstitutional in cases in which the intended guideline sentence depends crucially on enhancements based on judge-determined facts, would still be constitutional in cases in which the guideline sentence requires no such enhancements, is not" }, { "docid": "4010291", "title": "", "text": "as Gonzalez argues in this case, that we should “look at each offense on a case-by-case basis and determine whether or not it comes within the scope of section 16(b).” 805 F.2d at 1469. This, we believed, was tantamount to inquiring “whether the crime, as committed, actually created a substantial risk of harm.” Id. (emphasis added). We dismissed the government’s argument because we concluded that if Congress had intended section 16(b) to apply only to those situations where force in fact was used or violence in fact occurred, it could simply have deleted the language “by its nature.” Id. We now extend our conclusions in Cruz to hold that section 16(b) contemplates a generic category of offenses which typically present the risk of injury to a person or property irrespective of whether the risk develops or harm actually occurs. Offenses within the scope of section 16(b) have as a commonly shared characteristic the potential of resulting in harm. Once the court determines that the defendant has been convicted of a crime that usually involves a risk of harm, the inquiry ends; it does not matter whether that risk has matured into actual harm. Thus, the sentencing judge was not permitted under section 16(b) to consider the particular circumstances surrounding the commission of the offense. Our interpretation of the guidelines’ definition of a crime of violence is consistent with the overall objectives of the guidelines themselves. The guidelines, at least in part, constitute an effort by the Commission to design a sentencing system that reduces disparities in the sentences of defendants convicted of similar crimes. See Ogletree, The Death of Discretion? Reflections on the Federal Sentencing Guidelines, 101 Harv.L.Rev. 1938, 1944 (1988). Taking into account the myriad of subtle differences in the commission of every recognized crime of violence would result in as many different sentences. We do not believe, therefore, that the Commission would adopt a definition of a crime of violence that would run counter to the purposes of the guidelines. Moreover, requiring sentencing courts to conduct factual inquiries into the specific conduct underlying an earlier conviction would present" }, { "docid": "22723903", "title": "", "text": "practices may be in tension with the Constitution ... because the current system — in practice — works a lot like the pre-Booker system”); Kandirakis, 441 F.Supp.2d at 289-99 (Young, J.) (\"[T]he Guidelines — and their judge-made factual findings — are still the driving force behind federal sentencing.”); Michael W. McConnell, The Booker Mess, 83 Denver U.L.Rev. 665, 677 (“The jury verdict is no more consequential after Booker than before.”). Indeed, Justice Scalia made the same point in his dissent to Booker's remedial opinion. See 543 U.S. at 311-13, 125 S.Ct. 738 (predicting that Booker's remedy would create de facto mandatoiy Guidelines). The reality is, however, the same Court to strike down the judge-based, mandatory Guidelines system as unconstitutional also issued the remedy: a judge-based, advisory Guidelines scheme. No matter how compelling Judge McKee's reasoning may be, it must fail, as it cannot be unconstitutional under current doctrine for a sentencing judge to do exactly what the Supreme Court has instructed be done. .I must also, therefore, respectfully disagree with my dissenting colleagues, who argue that Apprendi and Blakely operate post -Booker to require proof beyond a reasonable doubt for the Guidelines fact at issue here — whether Grier committed an aggravated assault. That the Guidelines are no longer mandatory makes all the constitutional difference as far as those cases are concerned. As Justice Stevens’s merits opinion in Booker said, \"If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment.” 543 U.S. at 233, 125 S.Ct. 738; see also Apprendi, 530 U.S. at 481, 120 S.Ct. 2348. That is exactly what Justice Breyer’s remedial opinion in Booker purported to do. But see supra, note 23. Both Judge Sloviter and Judge McKee highlight the Supreme Court's statement in Blakely that \" 'the 'statutory maximum’ for Appren-di purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant ’" }, { "docid": "2489390", "title": "", "text": "government has proved any aggravating facts (other than prior conviction), beyond a reasonable doubt. Once a sentencing jury made its determination, the court could then determine an appropriate sentence within the range authorized by the jury’s verdict.” This approach has been described in one detailed opinion as “Apprendi-izing” juries. The court finds that this approach is not legally authorized and not practical. As a legal matter, this solution is problematic because it effectively requires the courts to redraft the sentencing statutes and implementing Guidelines. In Blakely, the Court declined to revise the Washington scheme and here that appears to be a task uniquely left to Congress. It is settled doctrine that “[sjtatutes should be construed to avoid constitutional questions, but this interpretive canon is not a license for the judiciary to rewrite language enacted by the legislature.” Currently the Guidelines contemplate a system in which the probation office gathers facts subject to the parties’ objection and presents them to the judge for disposition. Based on the probation officer’s report, the court then makes factual findings that can be reviewed on appeal. To say that some, but not all, of these duties are summarily transferred to a sentencing jury would upset the entire scheme. Furthermore, because the duties of probation officers and judges are specified in the Guidelines, any judicial redistribution of duties would necessarily involve a reworking of the statute. As one example of the reworking that would need to be done, the Federal Rules of Criminal Procedure currently provided that “the court” shall determine any disputed sentencing matter. As a practical matfer, it would be impossible to simply confer upon the jury all of the judge’s duties under the Guidelines statutes. The current regime requires judges to make extensive findings that affect the sentence. While juries generally are adept at determining the guilt or innocence of a defendant, the list of findings contemplated by the Guidelines is extensive and nuanced, modified and interpreted regularly in numerous court opinions. Making such findings is a task much assigned to judges, not to juries. An illustration from the obstruction of justice guideline" }, { "docid": "12431576", "title": "", "text": "the version of the Guidelines in effect at the time of sentencing. However, our court has already determined that some departure from this intent is necessary to satisfy constitutional concerns. See Castro, 972 F.2d at 1112; Sweeten, 933 F.2d at 772. If, in deviating from one congressional mandate, we are to uphold the distinct, but equally important, intent of Congress that unwarranted sentencing disparities be avoided, we must follow the course laid out in Stephenson. We acknowledge that piecemeal application of the Guidelines might promote uniformity in sentencing among defendants in Warren’s situation. However, the Guidelines take a broader approach in measuring the consistency of sentences. As the Sentencing Commission has observed: A sentencing system tailored to fit every conceivable wrinkle of each case would quickly become unworkable and seriously compromise the certainty of punishment and its deterrent effect.... The larger the number of subcategories of offense and offender characteristics included in the guidelines, the greater the complexity and the less workable the system. Moreover, complex combinations of offense and offender characteristics would apply and interact in unforeseen ways to unforeseen situations, thus failing to cure the unfairness of a simple, broad category system. Finally, and perhaps most importantly, probation officers and courts, in applying a complex system having numerous subcategories, would be required to make a host of decisions regarding whether the underlying facts were sufficient to bring the case within a particular subcategory. The greater the number of decisions required and the greater their complexity, the greater the risk that different courts would apply the guidelines differently to situations that, in fact, are similar, thereby reintroducing the very disparity that the guidelines were designed to reduce. U.S.S.G. ch. 1, pt. A.3, p.s. (Nov. 1, 1992). In view of these observations, we think it more appropriate that sentences be determined under one set of Guidelines rather than applying the Guidelines piecemeal. Doing so will promote uniform sentences among all defendants guilty of Warren’s crime, and not just among those defendants who committed their crimes and received their sentences when Warren did. We therefore reject Warren’s argument and adopt the" }, { "docid": "21622430", "title": "", "text": "pleaded guilty to the bare elements of wire fraud under the circumstances at bar. The Guidelines themselves, U.S.S.G. § 1A1.1, Editorial Note, Ch. 1, Part A, § 4(a), and the authoritative discussion by one of their principal draftsmen, Stephen G. Breyer, The Federal Sentencing Guidelines and the Key Compromises on Which They Rest, 17 Hofstra L.Rev. 1, '12-13 (1988), make clear that the entire substantive system of the Guidelines rests on a determination that the judge should make findings required by a “modified real offense” sentencing system that distinguished the facts relied upon in sentencing from the elements of the “offense of conviction” found by the jury. To impose the one without the other would require, in many cases, including the present one, either radically lenient sentences completely at odds with the intentions of Congress and of the Sentencing Commission, or the creation out of whole cloth of a system of sentencing-jury trials that would not only be impractical, but that would, more importantly, be completely unauthorized by any constitutional provision, statute, judicial precedent or tradition. IV. Summary and Conclusion This Court will continue to apply the Guidelines in imposing sentence in pending cases, unless and until instructed to do otherwise by the Supreme Court or the Second Circuit. Binding Circuit case law holds that the guideline fact-finding system is consistent with the constitutional right to a jury trial as interpreted in Apprendi, and this Court is obliged to follow that precedent until it is overruled by a higher court or until Supreme Court precedent renders it untenable. That point, while perhaps imminent, has not arrived. This Court believes that the Second Circuit’s conclusion was and is correct. This view may be difficult to reconcile with some of the language of Blakely, but the inconsistency between that language and prior Supreme Court precedent interpreting the Guidelines, the existence of significant potential distinctions between the federal Guidelines and the system rejected in Blakely, and the Supreme Court’s specific reservation of the question of the constitutionality of the federal Guidelines, combine to compel the conclusion that Blakely does not so thoroughly undermine" }, { "docid": "4010292", "title": "", "text": "risk of harm, the inquiry ends; it does not matter whether that risk has matured into actual harm. Thus, the sentencing judge was not permitted under section 16(b) to consider the particular circumstances surrounding the commission of the offense. Our interpretation of the guidelines’ definition of a crime of violence is consistent with the overall objectives of the guidelines themselves. The guidelines, at least in part, constitute an effort by the Commission to design a sentencing system that reduces disparities in the sentences of defendants convicted of similar crimes. See Ogletree, The Death of Discretion? Reflections on the Federal Sentencing Guidelines, 101 Harv.L.Rev. 1938, 1944 (1988). Taking into account the myriad of subtle differences in the commission of every recognized crime of violence would result in as many different sentences. We do not believe, therefore, that the Commission would adopt a definition of a crime of violence that would run counter to the purposes of the guidelines. Moreover, requiring sentencing courts to conduct factual inquiries into the specific conduct underlying an earlier conviction would present significant practical problems. Witnesses may no longer be available to testify, and even if they are, their testimony would be unreliable because they would be asked to describe events that occurred years previous. United States v. Leonard, 868 F.2d 1393, 1397 (5th Cir.1989). In most cases, documentary evidence also would provide little insight into the actual events giving rise to the conviction because rap sheets usually include nothing more than evidence of a conviction. We do not believe that Congress or the Commission were unmindful of these practical concerns and if they intended to require the sentencing court to participate in the equivalent of an ad hoc mini-trial, they would have provided at least some guidance. We hold that the guidelines prohibit the sentencing court from reviewing the underlying facts of a conviction to determine whether it is a crime of violence for career offender purposes. 2. Predicate Offenses We now turn to an analysis of the elements or inherent nature of Gonzalez’s pri- or convictions to determine if they qualify as crimes of violence." }, { "docid": "2489403", "title": "", "text": "sentence greater than the. statutory maximum—now twenty years. Some observers may conclude that this is paradoxical, inasmuch as Blakely ’.s core goal is to insure jury fact-finding at sentencing. However, Blakely’s constitutional requirement -is that “the, prosecutor prove to a jury all facts legally essential to the punishment.” Because the only “legally essential” fact to punishing Croxford in the statutorily-mandated range of ten to twenty years is the fact of conviction, there is no constitutional prohibition to the court considering the evidence suirounding these alleged facts. At the same time, the court might also now be free to consider facts that the Guidelines would make irrelevant. In this case, for example, it appears based on a detailed, court-ordered psychiatric report that the defendant was sexually abused as a child on numerous occasions. Under the Guidelines, such facts are “ordinarily not relevant” in determining whether to depart from the guideline range. Because the court is apparently now more free to consider this evidence, in order to avoid giving the defendant grounds to appeal (which, if successful, might further traumatize the young victim) the court has taken the evidence into consideration by slightly reducing the defendant’s sentence. A final question is whether the court can look at the Guidelines for guidance in determining the appropriate sentence in this case, even though the Sixth Amendment forbids giving them the force of law. The court will consider the Guidelines as providing useful instruction on the appropriate sentence. The Sentencing Commission has carefully developed the Guidelines over many years, and the Guidelines generally produce sentences that accord with the public’s views of just punishment. They are a valuable source of information, even though they are not binding in this case. Additionally, implementation of the Guidelines was based largely on the pre-sentence report compiled by a probation officer. As the Supreme Court noted as long ago as Williams, these reports “have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information.” In sum, the court concludes that Crox-ford must be sentenced" }, { "docid": "21622429", "title": "", "text": "the Guidelines fall sufficiently far from the failings condemned in Apprendi that this Court remains convinced of their constitutionality. III. Severability One thing does seem certain, however. If it is unconstitutional for the Court to apply sentencing guideline enhancements based on fact findings that go beyond the facts admitted by the defendant at his plea, the entire structure of the Guidelines must fall. At least as applied to defendants in Emmenegger’s position, the fact-finding system of the guidelines regime, for reasons eloquently discussed by several judges who are thoughtful students of sentencing, is inseparable from the substantive guideline provisions that it applies. Just as it makes no sense to consider the “base offense level” for wire fraud offenses, which imposes a presumptive sentence of 0 — 6 months, the “statutory maximum” for wire fraud, it makes even less sense to conclude that had Congress known that the fact-finding system assumed and directed by the Guidelines would be held unconstitutional, it would have wished this Court to impose such a minimal sentence on a defendant who pleaded guilty to the bare elements of wire fraud under the circumstances at bar. The Guidelines themselves, U.S.S.G. § 1A1.1, Editorial Note, Ch. 1, Part A, § 4(a), and the authoritative discussion by one of their principal draftsmen, Stephen G. Breyer, The Federal Sentencing Guidelines and the Key Compromises on Which They Rest, 17 Hofstra L.Rev. 1, '12-13 (1988), make clear that the entire substantive system of the Guidelines rests on a determination that the judge should make findings required by a “modified real offense” sentencing system that distinguished the facts relied upon in sentencing from the elements of the “offense of conviction” found by the jury. To impose the one without the other would require, in many cases, including the present one, either radically lenient sentences completely at odds with the intentions of Congress and of the Sentencing Commission, or the creation out of whole cloth of a system of sentencing-jury trials that would not only be impractical, but that would, more importantly, be completely unauthorized by any constitutional provision, statute, judicial precedent or" }, { "docid": "7874078", "title": "", "text": "pre-trial negotiations, O’Meara refused to accept a plea bargain that Kost had been willing to take. Whether the disparity in this case rests upon some inadvertent preference for personalities or because a more sophisticated offender successfully manipulated the system to his advantage, the end result is no less unsettling. Guideline sentencing “by the numbers” was supposed to eliminate such improper influences. As this case demonstrates, however, the Sentencing Guidelines do not reduce disparity and in my judgment have failed in that regard. The essential lie of the Sentencing Guidelines is that, by establishing “neutral criteria” which vastly restrict the district judge’s discretionary powers, they will eliminate disparity in sentencing. In reality, the present guideline system merely replaces one system of subjective sentencing with another. Indeed, the Guidelines are an intricate and complex code of sentencing and, as such, require extensive construction. Needless to say, this construction is not conducted by computers — much less by gods. Instead, the implementation of the present guideline system is highly dependent on the judgment calls of fallible human actors, who are no less susceptible to errors in judgment and differences in interpretation than their pre-Guidelines predecessors. Hence, where sentencing judges once applied their legal knowledge and life experiences to the facts of a given case, we now call on them to evaluate the defendant’s circumstances according to the dictates of a complex and cumbersome code. Guideline sentencing is perhaps most disturbing, however, not because it continues to require subjective decision-making, but because these still-subjective determinations are in large part no longer conducted by the federal judiciary. Rather, due to the difficulty of mastering this complicated and ever-evolving guideline system, it seems to me that district courts have come increasingly to rely on the recommendations of the probation officer who prepares the presentence report. Consequently, it is a sad but true fact of life under the Guidelines that many of the crucial judgment calls in sentencing are now made, not by the court, but by probation officers to whose technical knowledge overworked district judges understandably, but all too often, uncritically defer. I cannot help but" }, { "docid": "18245013", "title": "", "text": "in the instant case, were crystallized following a series of cases handed down by the United States Supreme Court after the Mueffelman verdict, but before the defendant’s sentencing. First, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Blakely held that a Washington State statute violated the Sixth Amendment because it authorized the trial court to impose a sentence above the “standard” statutory range if the government found any one of a list of aggravating factors. The Court noted that “[w]hen a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ and the judge exceeds [her] proper authority.” 542 U.S. at 303, 124 S.Ct. 2531. Immediately after Blakely, I issued a procedural order calling for briefing on the decision’s impact on prosecutions before me in which the verdict/plea occurred pre-Blakely but sentencing occurred post- Blakely. Subsequently, I concluded that Blakely must be applied to the Federal Sentencing Guidelines and, as such, the Guidelines were unconstitutional in their entirety. I found: [I]t is inconceivable that the system now required by the [Blakely ] decision is at all consistent with anything contemplated by the drafters of the Sentencing Reform Act (“SRA”), Pub.L. No. 98M73, 98 Stat. 1837 (1987), or of the Guidelines. To literally engraft a system of jury trials involving fact-finding enhancements onto the Sentencing Guideline is to create a completely different regime than that comprehensive sentencing system envisioned by the legislation’s drafters or the drafters of the Guidelines. If such a system is required to give full effect to the Constitution’s jury trial guarantee then the entire sentencing system has to be recast. The constitutional sentencing pieces cannot be cobbled together by judges on a case by case basis. United States v. Mueffelman, 327 F.Supp.2d 79, 82 (D.Mass.2004)(hereinafter Mueffelman I). At the same time, I found that the Guidelines, which had anchored sentencing analysis for over fifteen years, must be taken into account in all cases. I addressed the specifics of this" }, { "docid": "11252046", "title": "", "text": "these sentences. At the same time, an “advisory” regime makes it all the more important that I adhere to my practice of writing opinions, outlining the reasons for the sentences I have imposed. As I describe in greater detail below, “advisory” does not mean a regime without rules, or a return to the standardless sentencing which preceded the SRA. Nor does it mean slavish application of the Guidelines under the guise of fair “consideration,” an approach which is now unconstitutional. “Advisory” means something in-between, which I articulate below. The two defendants, Issa Jaber and Philip Momoh, whose cases constitute the subject of this opinion, are among those raising complicated sentencing questions. I first present a framework for approaching sentencing after Booker, and then address the details of these defendants’ individual cases. I. UNITED STATES v. BOOKER Booker was the culmination of a series of decisions, beginning with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and ending with Blakely v. Washington, — U.S. -, 124 5.Ct. 2531, 159 L.Ed.2d 403 (2004), in which the Court implicitly acknowledged a troubling pattern. Since the days of indeterminate sentencing, when a judge had unreviewable authority to sentence an offender anywhere within the statutory range, the pendulum had swung completely in the opposite direction. In fact, the term “guidelines” had become a misnomer. The Guidelines were rules, even “diktats,” mechanistically applied. As the Second Circuit underscored in United States v. Crosby, 397 F.3d 103 (2d Cir.2005), it was the mandatory aspect of the Guideline regime that implicated the Sixth Amendment’s requirement of a jury trial. The Court highlighted the following quote in Booker: We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. Indeed, everyone agrees that the constitutional issue presented by these cases would have been avoided entirely if Congress had omitted from the SRA the provisions that make the Guidelines binding on district judges ... For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has" }, { "docid": "5217117", "title": "", "text": "Thirty cases in my docket fit into this category. Four were on the cusp of sentencing when the Blakely decision was rendered. I have consolidated those four cases for the purpose of addressing Blakely issues, invited extensive briefing, and held a lengthy oral argument. After I resolve the general Blakely issues in the cases before me, I will hold sentencing hearings in each individual case. This decision addresses the following: 1) Whether it is appropriate to defer consideration of Blakely issues pending further appellate guidance; 2) whether Blakely applies to the Federal Sentencing Guidelines; and, 3) whether the Federal Sentencing Guidelines are severable if portions of the Guidelines are unconstitutional under Blakely. To be sure, answering these questions does not resolve all of the issues implied by the decision — those issues can be addressed in the sentencing of particular defendants where they arise. As I describe below, I conclude (1) that it is entirely appropriate for a lower trial court to consider Blakely issues and add her voice to the dialogue about the decision’s implications; (2) that Blakely unquestionably applies to the Federal Sentencing Guidelines; and (3) that the Guidelines are rendered unconstitutional in their entirety by that application. While Blakely has gone a long way to make the sentencing system more fair, and to reinvigorate the role of juries in the process, it is inconceivable that the system now required by the decision is at all consistent with anything contemplated by the drafters of the Sentencing Reform Act (“SKA”), Pub.L. No. 98-473, 98 Stat. 1837 (1987), or of the Guidelines. To literally engraft a system of jury trials involving fact-finding enhancements onto the Sentencing Guideline is to create a completely different regime than that comprehensive sentencing system envisioned by the legislation’s drafters or the drafters of the Guidelines. If such a system is required to give full effect to the Constitution’s jury trial guarantee then the entire sentencing system has to be recast. The constitutional sentencing pieces cannot be cobbled together by judges on a case by case basis. As a backdrop to the latter discussion, I will" }, { "docid": "21622428", "title": "", "text": "elements of any particular statutory crime. Where it may make sense to think of the 49' — 53 month “standard sentencing range” as the operative ordinary maximum punishment for kidnap-ing in the second degree in Washington, the federal Guidelines defy any effort to identify a “standard sentencing range” (or a “statutory maximum” other than the one literally provided by 18 U.S.C. § 1343) for wire fraud. The system simply does not work that way. Whether the Supreme Court will find these distinctions persuasive is not for this Court to predict. Like the dissenters in Blakely, this Court would likely have seen the Washington system, which is only cursorily described in the Supreme Court’s opinion, as falling (with respect to the intrusion on jury prerogatives) close enough to traditional discretionary sentencing, and far enough from the problematic statute in Apprendi, to pass constitutional muster, and the Supreme Court’s rejection of the dissenters’ arguments inspires little confidence that the majority will reach a different view of the federal system. But the question is one of line-drawing, and the Guidelines fall sufficiently far from the failings condemned in Apprendi that this Court remains convinced of their constitutionality. III. Severability One thing does seem certain, however. If it is unconstitutional for the Court to apply sentencing guideline enhancements based on fact findings that go beyond the facts admitted by the defendant at his plea, the entire structure of the Guidelines must fall. At least as applied to defendants in Emmenegger’s position, the fact-finding system of the guidelines regime, for reasons eloquently discussed by several judges who are thoughtful students of sentencing, is inseparable from the substantive guideline provisions that it applies. Just as it makes no sense to consider the “base offense level” for wire fraud offenses, which imposes a presumptive sentence of 0 — 6 months, the “statutory maximum” for wire fraud, it makes even less sense to conclude that had Congress known that the fact-finding system assumed and directed by the Guidelines would be held unconstitutional, it would have wished this Court to impose such a minimal sentence on a defendant who" }, { "docid": "18245014", "title": "", "text": "Guidelines and, as such, the Guidelines were unconstitutional in their entirety. I found: [I]t is inconceivable that the system now required by the [Blakely ] decision is at all consistent with anything contemplated by the drafters of the Sentencing Reform Act (“SRA”), Pub.L. No. 98M73, 98 Stat. 1837 (1987), or of the Guidelines. To literally engraft a system of jury trials involving fact-finding enhancements onto the Sentencing Guideline is to create a completely different regime than that comprehensive sentencing system envisioned by the legislation’s drafters or the drafters of the Guidelines. If such a system is required to give full effect to the Constitution’s jury trial guarantee then the entire sentencing system has to be recast. The constitutional sentencing pieces cannot be cobbled together by judges on a case by case basis. United States v. Mueffelman, 327 F.Supp.2d 79, 82 (D.Mass.2004)(hereinafter Mueffelman I). At the same time, I found that the Guidelines, which had anchored sentencing analysis for over fifteen years, must be taken into account in all cases. I addressed the specifics of this case (and that of co-defendant Lombardi) during two days of hearings. Defendant Mueffelman took the position that I did not have the authority to sentence him on the basis of facts not found by the jury. Since the jury was not asked to determine the amount of money that the clients of the company had lost, the defendant’s position meant that the Court would be obliged to ignore the scope of this offense in determining the sentence. The government took the position that the Court should determine the amount of loss and that that number should drive Mueffelman’s sentencing range as though the Guidelines were unchanged. I rejected both approaches (although I adopted the government’s position with respect to restitution' — but not the government’s rationale). I was not willing to adopt the Guidelines-mandated sentence of nearly three years suggested by the government. Nor was I willing to sentence Mueffelman to probation as the defendant urged. I took the Guidelines into account, calculating the amount of loss attributable to Mueffelman’s acts as I would have" }, { "docid": "22549796", "title": "", "text": "the majority’s judgment, there was “no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in [Blakely].” Id., at 238. Both systems were “mandatory and impose[d] binding requirements on all sentencing judges.” Ibid. Justice Stevens’ opinion for the Court, it bears emphasis, next expressed a view on which there was no disagreement among the Justices. He acknowledged that the Federal Guidelines would not implicate the Sixth Amendment were they advisory: “If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. Indeed, everyone agrees that the constitutional issues presented by [this case] would have been avoided entirely if Congress had omitted from the [federal Sentencing Reform Act] the provisions that make the Guidelines binding on district judges .... For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant. “The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges.” Ibid. (citations omitted). In an opinion written by Justice Breyer, also garnering a five-Member majority, the Court faced the remedial question, which turned on an assessment of legislative intent: What alteration would Congress have intended had it known that the Guidelines were vulnerable to a Sixth Amendment challenge? Three choices were apparent: The Court could invalidate in its entirety the Sentencing Reform Act of 1984 (SRA), the law comprehensively delineating the federal sentencing system; or it could preserve the SRA, and the mandatory Guidelines regime the SRA established, by attaching a jury-trial requirement to any fact increasing a defendant’s base Guidelines range; finally, the Court could render the Guidelines advisory by severing two provisions of the SRA, 18 U. S. C. §§ 3553(b)(1) and 3742(e) (2000 ed. and" }, { "docid": "22247245", "title": "", "text": "uniformity in sentencing. 28 U.S.C. § 991(b)(1)(B). As the Sentencing Commission stated: “Congress sought uniformity in sentencing by narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct by similar offenders.” U.S.S.G. Ch. 1, Pt. A, intro., p.s. at 1.2. Persons guilty of the same offense should receive the same punishment where possible. The Guidelines are addressed mainly to the crime committed and conduct of the defendant relevant to the commission of the crime. They give small value to the individual characteristics of a defendant, although departure in this area is recognized. The Commission has stated in the introduction to the Guidelines that “[w]hile Chapter 5, Part K lists factors that the Commission believes may constitute grounds for departure, those suggested grounds are not exhaustive.... In its view, however, such cases will be highly unusual.” Id. at 1.7. Many judges are unhappy with the Guidelines, for one reason or another. That unhappiness clearly comes through in the views of the court below. However, until Congress changes the law, which is its province, we must proceed within the reasonable parameters of the statute and the Guidelines. See United States v. Aguilar-Pena, 887 F.2d 347, 353 (1st Cir.1989) (“Judicial dissatisfaction alone, no matter how steeped in real-world wisdom, cannot be enough to trigger departures, lest the entire system crumble.”); United States v. Lopez, 875 F.2d 1124, 1126-27 (5th Cir.1989) (disagreement with the Guidelines does not provide a reasonable basis for departure). We are told in the floor debate that departure should be made only in the atypical, unusual case. 133 Cong.Rec. 516647 (daily ed. Nov. 20, 1987) (statement of Senator Hatch). The Senate Report on the original bill defines departure as the rare form of a circumstance which has not been considered by the Commission, or the usual form which has been considered but is present in a particularly extreme form. Legislative History at 3261-62. Homosexuality and physical mannerisms creating vulnerability are not circumstances of a rare form, nor an extreme form. The introduction to the Guidelines Manual at 1.6 states: “When a court finds an atypical" } ]

[ { "docid": "22091134", "title": "", "text": "must also have implicitly required him to obtain advance acceptance from countries with which the alien does have such ties. Moreover, if the Attorney General is unable to secure an alien’s removal at the third step, all that is left is the last resort provision allowing removal to a country with which the alien has little or no connection — if a country can be found that will take him. If none exists, the alien is left in the same removable-but-unremovable limbo as the aliens in Zadvydas v. Davis, 533 U. S. 678 (2001), and Clark v. Martinez, post, p. 371, and under the rule announced in those cases must presumptively be released into American society after six months. If this is the result that obtains when the country-selection process fails, there is every reason to refrain from reading restrictions into that process that do not clearly appear — particularly restrictions upon the third step, which will often afford the Attorney General his last realistic option for removal. To infer an absolute rule of acceptance where Congress has not clearly set it forth would run counter to our customary policy of deference to the President in matters of foreign affairs. Removal decisions, including the selection of a removed alien’s destination, \"may implicate our relations with foreign powers” and require consideration of “changing political and economic circumstances.” Mathews v. Diaz, 426 U. S. 67, 81 (1976). Congress has already provided a way for the Attorney General to avoid removals that are likely to ruffle diplomatic feathers, or simply to prove futile. At each step in the selection process, he is empowered to skip over a country that resists accepting the alien, or a country that has declined to provide assurances that its border guards will allow the alien entry. Nor is it necessary to infer an acceptance requirement in order to ensure that the Attorney General will give appropriate consideration to conditions in the country of removal. If aliens would face persecution or other mistreatment in the country designated.under § 1231(b)(2), they have a number of available remedies: asylum, § 1158(b)(1);" } ]

[ { "docid": "23145836", "title": "", "text": "of Habeas Corpus. . Immigration and Customs Enforcement is a bureau within the larger Department of Homeland Security. For convenience, we use the term \"Government” as a shorthand term to describe their collective efforts, and refer specifically to DHS or ICE only when necessary. . In the District Court, the Government filed the declaration of John Ellington, Deputy Chief Counsel for the Philadelphia Office of ICE. There, Ellington stated that “respondent [Diop] was denied bond” at this May 27 hearing. The declaration provides no further explanation of that statement, the reasons for the denial of bond, or whether Diop was even eligible for bond in the first place. . The Government concedes that this was error. Respondents-Appellees’ Answering Br. 10 n.6. The Government’s basis for detaining Diop was 8 U.S.C. § 1226(c), not § 1231. The former governs pre-removal detention, while the latter applies to aliens who have been deemed removable pursuant to a final order. . Standing must be distinguished from the separate and distinct inquiry into whether a petitioner is \"in custody,” as required under the habeas statutes. \"[W]hat matters for the 'in custody’ requirement is whether the petitioner was in custody at the time his habeas petition was filed.'’ Kumarasamy v. Attorney General, 453 F.3d 169, 173 n. 7 (3d Cir.2006). Diop was in custody when he filed his petition. . We recently held that the Supreme Court’s decision in Padilla v. Kentucky is retroactive. United States v. Orocio, 645 F.3d 630, 640-42 (3d Cir.2011). However, there is no judicial consensus on the issue and many lower courts have come to a contrary conclusion. See United States v. Shafeek, 2010 WL 3789747 (E.D.Mich. Sept. 22, 2010); Martin v. United States, 2010 WL 3463949 (C.D.Ill. Aug. 25, 2010); Gacko v. United States, 2010 WL 2076020 (E.D.N.Y. May 20, 2010). . This court has a longstanding policy of not citing to not-precedential decisions. We cite to McLeod not to make any substantive legal point, but only to show that the Government has assumed a different litigating position in similar cases. . The Homeland Security Act of 2002 transferred most" }, { "docid": "23230829", "title": "", "text": "OPINION FISHER, Circuit Judge: In Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir.2008), we held that aliens facing prolonged detention while their petitions for review of their removal orders are pending are entitled to a bond hearing before a neutral immigration judge. In this appeal we address certain procedures that must be followed in those hearings to comport with due process. We hold as an initial matter that a federal district court has habeas jurisdiction under 28 U.S.C. § 2241 to review Casas bond hearing determinations for constitutional claims and legal error. See Demore v. Kim, 538 U.S. 510, 516-17, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). We also hold that, given the substantial liberty interests at stake in Casas hearings, the government must prove by clear and convincing evidence that continued detention is justified. We further hold that the immigration court is required to make a contemporaneous record of Casas hearings and that an audio recording would suffice. Background Vijendra Singh is a native and citizen of Fiji who was admitted to the United States in 1979 on a visitor visa. He became a lawful permanent resident in 1981. He has been married to Babita Singh, who is also a U.S. resident, since 1985, and they have five children, all of whom are U.S. citizens. In April 2007, the Department of Homeland Security (DHS) Immigration and Customs Enforcement (ICE) issued Singh a Notice to Appear (NTA), charging that he was removable because he had been convicted of receiving stolen property in 2006 and petty theft with priors in 2005. Singh was taken into ICE custody without bond on April 10, 2007, and has remained in continuous custody from that time until the present. In September 2007, the immigration judge (IJ) concluded that Singh was ineligible for cancellation of removal because he had committed an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(G). Singh appealed to the Board of Immigration Appeals (BIA), which affirmed the removal order in March 2008. He then filed a petition for review of the final administrative order of removal with" }, { "docid": "22492812", "title": "", "text": "sentences receive relief from removal, because, for example, their earlier conviction involved only a short sentence. See App. 95 (Table 23); id., at 135 (Table 38). See also App. to Pet. for Cert. 34a; App. 210, 216-217, 312-313 (between one-half and two-thirds of the class served sentences less than six months, e.g., a 2-month sentence for being under the influence of a controlled substance, or an 8-day jail term for a minor firearms offense). Sixth, these very asylum seekers would have received bail hearings had they first been taken into custody within the United States rather than at the border. See In re X-K-, 23 I. & N. Dec. 731, 734-735 (BIA 2005) ; 8 U.S.C. § 1226(a). Seventh, as for those who have finished serving their sentences (for crimes), some of those who are less dangerous would (on the majority's view) be held without bail the longest, because their claims will take longer to adjudicate. Moreover, those noncitizens would have no opportunity to obtain bail while they pursue their claims, but if they lose their claims, the Government must release them, typically within six months, if the Government can find no other country willing to take them. See Zadvydas, supra, at 701, 121 S.Ct. 2491. Eighth, all the respondents are held in detention within the geographical boundaries of the United States, either in facilities controlled by United States Immigration and Customs Enforcement (ICE) or in state or local jails that hold them on ICE's behalf. App. 302-304; see ICE, Detention Facility Locator, online at http://www.ice.gov/detention-facilities (all Internet materials as last visited Feb. 21, 2018). Ninth, the circumstances of their detention are similar, so far as we can tell, to those in many prisons and jails. And in some cases the conditions of their confinement are inappropriately poor. See Dept. of Homeland Security (DHS), Office of Inspector General (OIG), DHS OIG Inspection Cites Concerns With Detainee Treatment and Care at ICE Detention Facilities (2017) (reporting instances of invasive procedures, substandard care, and mistreatment, e.g., indiscriminate strip searches, long waits for medical care and hygiene products, and, in the case of" }, { "docid": "3325425", "title": "", "text": "or relates to his or her official duties. Defs.’ Mot. Summ. J. at 3 n.2. On November 13, 2012, AILA submitted a FOIA request to EOIR seeking: (1) All complaints filed against immigration judges; (2) All records that reflect the resolution of complaints filed against immigration judges, including the type of informal action taken, if any, or formal discipline imposed, if any; (3) All records that reflect the reasons for resolving complaints against immigration judges and/or findings relied on to resolve complaints against immigration judges, including any reports or memoranda from the Department of Justice Office of Professional Responsibility (OPR) or Office of the Inspector General (OIG); (4) All records incorporated by reference in documents that reflect the resolution of complaints filed against immigration judges; and (5) An index of the records described in paragraphs (2), (3), and (4) to the extent that those records constitute final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases, pursuant to 5 U.S.C. § 552(a)(2)(A). Defs.’ Mot. Summ. J. Ex. A. After this litigation commenced, EOIR released records in eight interim productions concluding on April 17, 2014. Decl. of Paul A. Rodrigues, Associate General Counsel for EOIR (“Rodrigues Decl.”) ¶¶ 18-19, 25, 28, 31, 38, 42-43. The productions included approximately 767 closed complaint files reflecting both substantiated and unsubstantiated complaints and a wide range of resolutions. Defs.’ Reply at 3 n.l. EOIR provided Vaughn indices for the interim productions, listing by category the redac-tions that had been made under FOIA Exemptions 5 and 6. Rodrigues Decl. ¶¶ 18-19, 25, 28, 31, 38, 42-43. Exemption 6 permits agencies to withhold infor mation from “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Pursuant to Exemption 6, EOIR redacted names and other identifying information pertaining to immigration judges, aliens, and EOIR and Department of Homeland Security employees. Rodri-gues Decl. ¶¶ 18-19, 25, 28, 81, 38, 42-43. Additionally, EOIR assigned a random three letter code to each IJ to enable AILA to group complaints" }, { "docid": "5650853", "title": "", "text": "of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed.Reg. 10,312, 10323 (1997) (citing Office of the Inspector General, United States Dep't of Justice, Inspection Rep. No. I-96-03, Deportation of Aliens After Final Orders Have Been Issued 9 (1996) available at http://www.usdoj.gov/oig/i9603/i9603.htm). While the incentive for aliens facing possible deportation to abscond is presumably high, we have no empirical data to provide an actual percentage. . The government argued that aliens would interpose delaying tactics that would complicate such hearings. However, control over the hearing and the ability to thwart such delays lies firmly in the hands of the immigration judge. .Patel directs our attention to an INS-contracted study by the Vera Institute finding high success rates in a pilot program allowing for the supervised release of individuals in removal proceedings, including criminal aliens. See Eileen Sullivan et al., Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program (2000) (finding that the vast majority of criminal aliens participating in the program appeared at all required hearings) at http:/! www.vera.org./publication-pdf/aapfinal.pdf. . The Eleventh Circuit, in Richardson v. Reno, 162 F.3d 1338 (11th Cir.1998), vacated by 526 U.S. 1142, 119 S.qt. 2016, 143 L.Ed.2d 1029, remanded to 180 F.3d 1311 (11th Cir.1999), upheld the constitutionality of § 236(c) in an isolated footnote amidst an examination of the constitutionality of the process surrounding bond requests for noncriminal aliens. \"Congress acts well within its plenary power in mandating detention of a criminal alien with an aggravated felony conviction facing removal proceedings [citing § 236(c)] ... This poses no constitutional issue ... The Supreme Court has determined that bail need not be provided in all immigration cases.” 162 F.3d at 1363 n. 119 (citing Carlson, 342 U.S. at 546, 72 S.Ct. 525 for the last proposition). On remand from the Supreme Court, Richardson challenged the constitutionality of § 236(c) but the court found the statute inapplicable to his case and declined to rule on the matter, noting only that the sole circuit to address the issue, the Seventh Circuit, upheld the constitutionality of the statute. Richardson, 180 F.3d at 1317 n." }, { "docid": "8301115", "title": "", "text": "OPINION & ORDER HAROLD BAER, JR., District Judge: Petitioner Maria Augusta Farez-Espinoza (“Farez-Espinoza”) filed the instant habeas corpus petition pursuant to 28 U.S.C. § 2241 challenging her detention by the Department of Homeland Security (“DHS”), naming as respondents the Secretary of DHS and the United States Attorney General (collectively, “Respondents” or “Government”). Farez-Espinoza essentially challenges her detention as being without statutory basis and unconstitutional in violation of her Due Process rights. In addition to disputing the merits of Farez-Espinoza’s habeas petition, the Government additionally argues that (1) this court lacks jurisdiction over the petition; (2) Respondents are wrongly named in the petition; and (3) venue is improper in this district. For the reasons set forth below, this Court disagrees with the Government’s position and the petition is granted. I. BACKGROUND Farez-Espinoza is a citizen of Ecuador and came to the United States two and a half years ago, on July 27, 2006. On the same day, Farez-Espinoza, a teenager at the time, was served with a Notice to Appear alleging that she was removable pursuant to 8 U.S.C. § 1182(a)(6)(A)© as an alien present in the United States without having been admitted or paroled. FarezKEspinoza is the natural-born daughter of Jose Farez, who is married to Carmela Farez-Leone, a naturalized United States citizen for more than twenty years. Farezr-Espinoza lived with her father, stepmother and younger sister at their home in Ridgewood, New York from her arrival in this country until October 27, 2008, when she was detained. Based on representations of FarezAEspinoza’s counsel, which have gone unrefuted by the Government, officials of DHS and the Bureau of Immigration and Customs Enforcement (“ICE”) have been aware of Farez-Espinoza’s address and whereabouts at all relevant times. Farez-Espinoza appeared before the United States Immigration Court in this district on November 30, 2006. Thereafter, a removal hearing was scheduled for July 17, 2007; however, her attorney who had represented her in her immigration proceedings failed to advise her that she was to appear before the Immigration Court on that date for her removal hearing. Upon her failure to appear at the removal hearing," }, { "docid": "23230847", "title": "", "text": "could well have led an entirely law-abiding life since then. In such cases, denial of bond on the basis of criminal history alone may not be warranted. B. The Government Need Not Establish “Special Dangerousness” to Justify Denial of Bond Singh urges us to require the government to prove that a detainee is “a specially dangerous person” to justify de nial of bond. The government argues that the Guerra standard is sufficient, and no heightened showing of dangerousness is required. We are persuaded by the government’s argument. Although we recognize that the “basic purpose” of immigration detention is “assuring the alien’s presence at the moment of removal,” Zadvydas, 533 U.S. at 699, 121 S.Ct. 2491, and “protecting the community from dangerous aliens is a ... secondary statutory purpose” more typically addressed through criminal law, id. at 697, 121 S.Ct. 2491, we disagree with Singh’s argument that Zadvydas requires a heightened standard of “special dangerousness.” In deciding that special dangerousness is not required, we draw a distinction between temporary and indefinite detention. Although the Supreme Court noted in Zadvydas that it has sanctioned “preventive detention based on dangerousness only when limited to specially dangerous individuals,” Zadvydas held the confinement at issue unconstitutional in large part because the detention was “not limited, but potentially permanent.” Id. at 691, 121 S.Ct. 2491. Regulations governing continued detention of removable aliens are in accord, providing that an alien must be found “specially dangerous” to permit prolonged post-final order detention “where there is no significant likelihood of removal in the reasonably foreseeable future.” 8 C.F.R. § 1241.14(a) (emphasis added). Likewise, the Ninth Circuit cases Singh cites in support of his argument for a special dangerousness standard address post-removal period indefinite detentions. See, e.g., Tuan Thai v. Ashcroft, 366 F.3d 790, 792 (9th Cir.2004); Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1102 (9th Cir. 2001). Singh, however, does not allege that he is subject to indefinite detention like the Zadvydas detainees who were experiencing “removable-but-unremovable limbo.” Prieto-Romero, 534 F.3d at 1063. Unlike in Zadvydas, Singh does not contend that the United States lacks a repatriation treaty" }, { "docid": "5650852", "title": "", "text": "Miscellaneous Technical Immigration and Naturalization Amendments of 1991, Pub.L. 102-232, § 306(a)(4), 105 Stat. 1751 (1991), to allow release of \"lawfully admitted alienfs] who had been convicted of an aggravated felony” if the alien \"demonstrates to the satisfaction of the Attorney General that such alien is not a threat to the community and that the alien is likely to appear before any scheduled hearings.” Former INA § 242(a)(2)(B) (formerly codified at 8 U.S.C. § 1252(a) (1992)). . Patel has framed his constitutional challenge as an as-applied challenge to the statute and we treat his challenge as such. . The BIA has recognized that an alien maintains his or her status as a lawful permanent resident pending a final order of removal. See In re Mendoza Sandino, 2000 WL 225840, Interim Dec. 3426, 2000 BIA LEXIS 3 (BIA 2000). . The study relied upon in Parra concerned the failure of aliens to surrender for deportation after final orders of deportation had been issued. Immigration and Naturalization Service, Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed.Reg. 10,312, 10323 (1997) (citing Office of the Inspector General, United States Dep't of Justice, Inspection Rep. No. I-96-03, Deportation of Aliens After Final Orders Have Been Issued 9 (1996) available at http://www.usdoj.gov/oig/i9603/i9603.htm). While the incentive for aliens facing possible deportation to abscond is presumably high, we have no empirical data to provide an actual percentage. . The government argued that aliens would interpose delaying tactics that would complicate such hearings. However, control over the hearing and the ability to thwart such delays lies firmly in the hands of the immigration judge. .Patel directs our attention to an INS-contracted study by the Vera Institute finding high success rates in a pilot program allowing for the supervised release of individuals in removal proceedings, including criminal aliens. See Eileen Sullivan et al., Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program (2000) (finding that the vast majority of criminal aliens participating in the program appeared at all required hearings) at http:/! www.vera.org./publication-pdf/aapfinal.pdf. . The" }, { "docid": "19710548", "title": "", "text": "indefinite detention by ICE.” Id. Here, conversely, “the available statistical evidence reveals that DHS removes Jamaican citizens to Jamaica on a regular basis, indicating that there are no institutional barriers to petitioner’s removal and repatriation.” Williams v. Holder, 2013 WL 1352306, at *5 (W.D.N.Y. April 3, 2013); see also id. at *5 n. 4 (“DHS reports show that in fiscal year (‘FY’) 2009, a total of 1,664 aliens were repatriated to Jamaica; in FY 2010, 1,487 aliens were repatriated to Jamaica; and in FY 2011, 1,474 aliens were repatriated to Jamaica.” (citing DHS Yearbook of Immigration Statistics: 2011, Table 41: http://www.dhs.gov/yearbookimmigration-statistics/2011)). Compare Monestime, 704 F.Supp.2d at 458; Ly v. Hansen, 351 F.3d 263, 266 (6th Cir.2003) (granting habeas relief in part because “removal is not currently foreseeable due to the lack of a repatriation treaty between the United States and Vietnam”), with Luna-Aponte v. Holder, 743 F.Supp.2d 189, 197-98 (W.D.N.Y.2010) (denying habeas relief where, “[significantly, there is absolutely no impediment to Petitioner’s eventual deportation .... there is nothing preventing him from being deported to the Dominican Republic”). The fact that Johnson’s appeal to the BIA became fully briefed in early March 2013 further suggests that Johnson’s detention is finite and near conclusion. Cf. Fuller v. Gonzales, No. 04 Civ.2039SRU, 2005 WL 818614, at *5-*6 (D.Conn. Apr. 8, 2005) (“Moreover, there is no indication that Fuller’s section [1226(c) ] detention is anywhere near over. The BIA has only recently ordered briefing in her case, and, because the government is arguing that more evidence must be taken in Fuller’s case, it is likely that the most the BIA will do is remand the case to the Immigration Judge.”); Tkochenko, 792 F.Supp.2d at 739-41 (“The BIA, in turn, has flatly stated that Tkochenko can expect no relief from it in the foreseeable future, advising the parties that: ‘[b]ecause of the Board’s heavy caseload, it cannot be predicted when a decision will be rendered.’ This notice effectively informed Tkochenko that there is no identifiable end to her current detention.”) (internal citations omitted) (alteration in original). Finally, Johnson’s detention is not unjustified. “[T]he justification for" }, { "docid": "20125107", "title": "", "text": "that story and I knew you were involved.” PL’s Opp’n, Ex. A (Arbitration Hr’g Tr.) at 1244-45. There is also some evidence in the record to indicate that Defendant Linda Argo called a meeting with DCRA managers to discuss the issues raised in the Fox 5 report. See id., Ex. B at 13 (3/2/2006 Email from Linda Argo to DCRA officials regarding “Fox5 report on elevators”). On November 3, 2006, the OIG issued its final report on its investigation of Payne. See Defs.’ Mem., Ex. 4 (Final Investigation Report). The report concluded that Payne had solicited work for his personal business as a third-party inspector while on duty in violation of D.C. Code § 1-618.02. Id. at 8. However, the report concluded that Payne had not issued violation notices for the purpose of earning overtime compensation. Id. The Inspector General’s recommendation was that appropriate action be taken against Payne. Id. On November 9, 2006, DCRA terminated Payne from his position and moved him to non-pay status. Defs.’ Stmt. ¶ 4. The termination letter indicated that Payne was being summarily removed based on the outcome of the OIG investigation. See Defs.’ Mem., Ex. 5 (11/9/2006 Letter). The letter informed Payne that he had a right to administrative review of the decision by a hearing officer. Id. at 2. Through his union, Payne submitted a response to the information in the OIG report, which was reviewed by Hearing Officer Theresa Cusick. See Defs.’ Mem., Ex. 6 (Report of Hr’g Officer). Ms. Cusick issued her report on February 13, 2007. Defs.’ Stmt. ¶ 6. Ms. Cusick’s report found that some of the evidence in the OIG report was not credible because it was based on statements by persons without personal knowledge and for which there was no corroboration. See Defs.’ Mem., Ex. 6 (Report of Hr’g Officer) at 4. However, Ms. Cusick found that Payne had admitted that he had a private elevator inspection business and that he had discussed that business with at least three individuals. Id. at 3. Based on her review of the OIG report and Payne’s evidence in response," }, { "docid": "10679311", "title": "", "text": "the detention and removal of aliens who are ordered removed. 8 U.S.C. § 1231. When an alien is subject to a removal order, the INA provides that the Executive Branch “shall remove the alien from the United States within a period of 90 days.” 8 U.S.C. § 1231(a)(1)(A). This is referred to as the “removal period.” Id. In this case, however, the 90-day removal period has not yet commenced. The removal period only begins to run on the latest of the following: (i) The date the order of removal becomes administratively final. (ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court’s final order. (iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement. 8 U.S.C. § 1231(a)(1)(B) (emphasis added). Although the statutory phrase “released from detention or confinement” is not defined, in the context of the entirety of Section 1231 the most reasonable interpretation of that phrase is that it refers to release from incarceration pursuant to a final judgment of conviction as entered by a court of competent jurisdiction. See, e.g., 8 U.S.C. § 1231(a)(4)(A) (“Except as provided in section 259(a) of title 42 and paragraph (2), the Attorney General [now, the Secretary of Homeland Security] may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment. Parole, [post-conviction] supervised release, probation, or pos sibility of arrest or further imprisonment is not a reason to defer removal.”); see also United States v. Rembao-Renteria, No. 07-mj-399 (JNE/ABJ), 2007 WL 2908137, at *3 (D.Minn. Oct. 2, 2007) (“Parole, supervised release, probation, and the possibility of being imprisoned again all assume a conviction. The Court does not read this list to include conditions placed on a defendant who has been charged but not convicted.”). In addition, a person who has been released subject to conditions of pretrial supervision is still “confined” because they are subject to restraints not shared by the public generally that significantly confine" }, { "docid": "9054070", "title": "", "text": "[non-immigration] detention,\" whichever comes latest, id. § 1231(a)(1)(B). The removal period may be extended \"and the alien may remain in detention during such extended period if the alien fails or refuses to make timely application in good faith for travel or other documents ... or conspires or acts to prevent the alien's removal.\" Id. § 1231(a)(1)(C). If, however, the alien is not removed by ICE during the 90-day removal period, \"pending removal, [he] shall be subject to supervision under regulations prescribed by the Attorney General.\" Id. § 1231(a)(3) (emphasis added); see also 8 C.F.R. § 241.5(a) (setting conditions to be included in an order of supervision). In some cases, aliens \"determined ... to be a risk to the community or unlikely to comply with the order of removal,\" inadmissible aliens, or removable aliens \"may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).\" Id. § 1231(a)(6). ICE contends Rombot is \"inadmissible\" under 8 U.S.C. § 1182. The Supreme Court has determined that ICE cannot indefinitely detain these classes of aliens in the post-removal period. See Zadvydas v. Davis, 533 U.S. 678, 701, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Rather, the Court has set the \"presumptively reasonable period of detention\" under section 1231(a)(6) to be six months. Id. ICE has its own regulations for the process that must be afforded to aliens held under section 1231(a)(6). See 8 C.F.R. § 241.4. Finally, the Supreme Court has made it clear that \"the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.\" Zadvydas, 533 U.S. at 693, 121 S.Ct. 2491. II. Rombot's Detention ICE maintains that it had statutory authority to detain Rombot under either 8 U.S.C. § 1231(a)(1)(C) or 8 U.S.C. § 1231(a)(6). The government argues that the removal period has been extended beyond the typical 90 days, because Rombot \"act[ed] to prevent\" his removal by filing applications for administrative stays. See Rodriguez-Guardado v. Smith, No. 17-11300-RGS, 271 F.Supp.3d 331, 334-35, 2017 WL 4225626, at *2" }, { "docid": "20678424", "title": "", "text": "ex rel. Bunikiene v. Chertoff, No. l:07-cv-00164-SS, 2007 WL 1074070, at *1 (W.D. Tex. Apr. 9, 2007). “In the wake of September 11, 2001, however, immigration policy fundamentally changed,” with “more restrictive immigration controls, tougher enforcement, and broader expedited removal of illegal aliens,” which “made the automatic release of families problematic.” Id. In 2001, the INS converted a nursing home in Berks County, Pennsylvania (“Berks”) into its first family detention center. Id. Because Pennsylvania has no licensing requirements for family residential care facilities, Berks has been monitored and licensed by state authorities under the state standards applicable to child residential and day treatment facilities. Id. at *8. In 2002, Congress enacted the Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135, abolishing the INS and transferring most of its immigration functions to the newly-formed Department of Homeland Security (“DHS”), in which Immigration and Customs Enforcement (“ICE”) is housed. 6 U.S.C. §§ 111, 251, 291. The Homeland Security Act transferred responsibility for the care and custody of unaccompanied alien children to the Office of Refugee Resettlement in the Department of Health and Human Services. 6 U.S.C. § 279(a), (b)(1)(A), (g)(2). In 2006, DHS converted a medium security prison in Taylor, Texas into its second family detention facility, the Don T. Hutto Family Residential Center (“Hutto”). Bunikyte, 2007 WL 1074070, at *1. In 2007, three children at Hutto, who were not represented by Flores’ class counsel, filed suit in the Western District of Texas, contending that the conditions at Hutto violated the Settlement. Id. at *1-2. In response, the government argued that the Settlement applied only to unaccompanied minors. The district court rejected that argument, holding that “by its terms, [the Settlement] applies to all ‘minors in the custody’ of ICE and DHS, not just unaccompanied minors.” Id. at *2-3 (quoting Settlement ¶ 9). The court then concluded that the minors’ confinement at Hutto violated the Settlement’s detention standards, id. at *6-15, but rejected the claim that the Settlement entitled the plaintiffs to have their parents released with them, id. at *16. The suit settled before trial. In re Hutto Family" }, { "docid": "22492881", "title": "", "text": "The named Government officials are the Attorney General of the United States, the Secretary of the Department of Homeland Security, the Director of the Executive Office for Immigration Review, the Director and Assistant Director of the Los Angeles District of Immigration and Customs Enforcement, and several directors of jails and detention facilities. Section 1252 provides a few specific grants of jurisdiction beyond § 1252(a)(1)'s general grant of jurisdiction over final removal orders and all other related questions of law and fact. Section 1252(b)(7), for example, allows an alien to challenge the validity of his removal order during criminal proceedings if he is charged with willfully failing to depart the United States. And § 1252(e)(2) allows an alien who is denied admission to the United States and ordered removed to raise certain claims in habeas corpus proceedings. Respondents also asserted at oral argument that the Government \"has said repeatedly\" that § 1252(b)(9) does not apply to detention claims. Tr. of Oral Arg. 36. But our \"independent obligation\" to evaluate jurisdiction, Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006), means that we cannot accept the Government's concessions on this point. See King Bridge Co. v. Otoe County, 120 U.S. 225, 226, 7 S.Ct. 552, 30 L.Ed. 623 (1887). Contrary to respondents' argument, some of the respondents will get review before \"all the detention has already happened.\" Respondents who successfully petition for review to the Court of Appeals from a final removal order and obtain a remand to the immigration court, like class representative Alejandro Rodriguez did here, will have an opportunity to obtain review of their detention before it is complete. See Third Amended Complaint, at 9-12. See, e.g., Act of Aug. 18, 1884, 28 Stat. 390 (\"In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereinafter made, the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of Treasury\"), upheld in Lem" }, { "docid": "8301148", "title": "", "text": "reasonably six-month period of removal to which the Government may have been entitled began to run on July 19, 2007 and expired in October 2007 and January 2008 respectively. The Removal Period Was Not Extended Under § 1231(a)(1)(C) Since I have concluded that the removal period was triggered by the entry of the Order of Removal on July 19, 2007, the only statutory provision under which the Government could potentially have authority to continue to hold Farez-Espinoza in custody is 8 U.S.C § 1231(a)(1)(C). That statute provides for an extension or “tolling” of the removal period if an alien “conspires or acts to prevent the alien’s removal.” Id. In relying on this provision, the only fact to which the Government has pointed as evidence of Farez-Espinoza’s prevention of her own removal is her failure to appear at her removal proceedings in July 2007. This act, or failure to act, is insufficient to trigger an extension of the removal period under § 1231(a)(1)(C). A review of the case law shows that the courts have read § 1231(a)(1)(C) narrowly. Generally, courts have only tolled the removal period in cases where the alien has demonstrated some sort of bad faith failure to cooperate, such as providing the INS with false or inconsistent information regarding his identity or country of origin, or refusing to complete travel arrangements or name a country for deportation. Thus, where continued detention under § 1231(a)(1)(C) has been upheld, the alien subject to the removal order committed some affirmative and misleading act to thwart the removal process or expressly refused to cooperate. See, e.g., Drabovskiy v. Young, No. 2:07-cv-1385, 2008 WL 4853327, at *5-6, SECTION P, 2008 U.S. Dist. LEXIS 93793, at *14-15 (W.D.La. Sept. 30, 2008) (removal period tolled under § 1231(a)(1)(C) because petitioner hampered ICE’s efforts to remove him by refusing to request travel documents and repeatedly refusing to provide background and demographic information necessary to obtain travel documents); Akinsehinwa v. Donate, No. l:CV-08-00395, 2008 WL 2951072, at *5-6, 2008 U.S. Dist. LEXIS 57982, at *15-17 (M.D.Pa. July 30, 2008) (removal period tolled where petitioner gave inconsistent information" }, { "docid": "19620138", "title": "", "text": "L.Ed.2d 382 (2016) (quoting FCC v. Fox Television Stations, Inc. , 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) ). Agency action is arbitrary and capricious if the agency \"relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.\" State Farm , 463 U.S. at 43, 103 S.Ct. 2856. In support of the decision to impose the three conditions, Defendants point to five documents in the administrative record: (1) a 2007 audit report by DOJ's Office of the Inspector General on the cooperation of jurisdictions participating in the State Criminal Alien Assistance Program in the removal of criminal aliens (\"2007 OIG Audit\"), Holt Decl. Ex. 9, at AR-00001-109, Doc. 33-9; (2) a May 2016 memorandum from DOJ's Office of the Inspector General regarding alleged violations of § 1373 by grant recipients (\"2016 OIG Memo\"), Holt Decl. Ex. 9, at AR-00366-375; (3) a July 2016 memorandum from DOJ's Office of Justice Programs responding to the aforementioned memo (\"2016 OJP Memo\"), Holt Decl. Ex. 10, at AR-00384-391, Doc. 33-10; (4) a one-page \"Backgrounder\" on the FY 2017 Byrne JAG conditions distributed to the media \"on background,\" Holt Decl. Ex. 17, at AR-00993, Doc. 33-17; and (5) a July 2017 press release announcing the conditions that accompanied the Backgrounder (\"Press Release\"), Holt Decl. Ex. 17, at AR-00992. See Defs.' Mem. 24-28. Defendants claim that the 2007 OIG Audit described a high level of cooperation on immigration between the federal and state governments, which later deteriorated. The audit concluded that \"[t]he 99 jurisdictions that responded to the questionnaire stated almost unanimously that there was no legislation or policy impeding the ability of local officers and agencies to communicate with ICE on immigration-enforcement matters,\" and noted that \"many state, county, and local law enforcement agencies are unwilling to initiate immigration enforcement but have policies that" }, { "docid": "9054069", "title": "", "text": "it was \"based on a review of [Rombot's] file and/or [his] personal interview and consideration of any information [he] submitted to ICE reviewing officials.\" Docket No. 50 at 1. Field Office Director Cronen further wrote that after reviewing the facts in Rombot's case, \"including [his] criminal arrests for obstructing a court order and failure to appear,\" Field Office Director Cronen decided that Rombot \"would pose a safety risk to the community\" if released from custody. Id. Nothing in the record supports the reasons in the decision, which are directly contradicted by Officer Stevens' testimony at the evidentiary hearing that Rombot had complied with his conditions of release. DISCUSSION I. Statutory Framework After an alien is ordered removed, Congress mandated that, in general, ICE \"shall remove the alien from the United States within a period of 90 days,\" 8 U.S.C. § 1231(a)(1)(A), which begins on \"[t]he date the order of removal becomes administratively final,\" the date of a court's final disposition if the removal order is judicially reviewed, or \"the date the alien is released from [non-immigration] detention,\" whichever comes latest, id. § 1231(a)(1)(B). The removal period may be extended \"and the alien may remain in detention during such extended period if the alien fails or refuses to make timely application in good faith for travel or other documents ... or conspires or acts to prevent the alien's removal.\" Id. § 1231(a)(1)(C). If, however, the alien is not removed by ICE during the 90-day removal period, \"pending removal, [he] shall be subject to supervision under regulations prescribed by the Attorney General.\" Id. § 1231(a)(3) (emphasis added); see also 8 C.F.R. § 241.5(a) (setting conditions to be included in an order of supervision). In some cases, aliens \"determined ... to be a risk to the community or unlikely to comply with the order of removal,\" inadmissible aliens, or removable aliens \"may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).\" Id. § 1231(a)(6). ICE contends Rombot is \"inadmissible\" under 8 U.S.C. § 1182. The Supreme Court has determined that ICE cannot" }, { "docid": "20678423", "title": "", "text": "educational services, recreation and leisure time, counseling, access to religious services, contact with family members, and a reasonable right to privacy. Some minors, such as those who have committed crimes, may be held in a juvenile detention facility instead of a licensed program. Id. ¶ 21. The Settlement generally provides for the enforcement in the Central District of California, id. ¶ 37, but allows individual challenges to placement or detention conditions to be brought in any district court with jurisdiction and venue, id. ¶ 24(B). The Settlement originally was to terminate no later than 2002. Id. ¶ 40. But, in 2001, the parties stipulated that the Settlement would terminate “45 days following defendants’ publication of final regulations implementing this Agreement.” The government has not yet promulgated those regulations. III. Developments Subsequent to the Settlement Before 2001, “families apprehended for entering the United States illegally were most often released rather than detained because of a limited amount of family bed space; families who were detained had to be housed separately, splitting up parents and children.” Bunikyte ex rel. Bunikiene v. Chertoff, No. l:07-cv-00164-SS, 2007 WL 1074070, at *1 (W.D. Tex. Apr. 9, 2007). “In the wake of September 11, 2001, however, immigration policy fundamentally changed,” with “more restrictive immigration controls, tougher enforcement, and broader expedited removal of illegal aliens,” which “made the automatic release of families problematic.” Id. In 2001, the INS converted a nursing home in Berks County, Pennsylvania (“Berks”) into its first family detention center. Id. Because Pennsylvania has no licensing requirements for family residential care facilities, Berks has been monitored and licensed by state authorities under the state standards applicable to child residential and day treatment facilities. Id. at *8. In 2002, Congress enacted the Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135, abolishing the INS and transferring most of its immigration functions to the newly-formed Department of Homeland Security (“DHS”), in which Immigration and Customs Enforcement (“ICE”) is housed. 6 U.S.C. §§ 111, 251, 291. The Homeland Security Act transferred responsibility for the care and custody of unaccompanied alien children to the Office of Refugee" }, { "docid": "16557892", "title": "", "text": "challenge the validity of his removal order, but instead attacks the constitutionality of his confinement while he was awaiting removal. His petition asserts that his “excessive detention” at Kenosha deprives him of his rights to substantive and procedural due process. R.l at 1, 18, 26; see also id. at 9 (“The action complained of is the unconstitutional length of Petitioner’s detention pending the final adjudication of the appeal of his removal proceedings and the bond appeal.”). Because this alleged “excessive detention” is taking place where Mr. Kholyavskiy is cur rently incarcerated, his habeas challenge is fundamentally no different from the typical “core” challenge described in Padilla, in which a prisoner seeks release from present physical confinement. Padilla holds that a habeas petition seeking this type of relief must name the “person who has the immediate custody of the person detained, with the power to produce the body of such party before the court or judge.” Padilla, 542 U.S. at 435,124 S.Ct. 2711 (emphasis in original) (internal quotation marks omitted). Mr. Kholyavskiy’s habeas petition has not named this individual. 3. Mr. Kholyavskiy nevertheless contends that Ms. Achim, director of the Chicago field office for ICE, is actually his immediate custodian, even though the warden exercises day-to-day control over the Kenosha facility. In support of this contention, Mr. Kholyavskiy invites our attention to a number of administrative regulations and governmental operations documents. This material indicates that ICE field office directors oversee the confinement of aliens in state and local jails such as Kenosha. These facilities are used by ICE, and its parent agency, the Department of Homeland Security, under Intergovernmental Service Agreements to hold detainees for more than 72 hours. See generally Roman, 340 F.3d at 320. The wardens of the facilities are considered agents of ICE field office directors who oversee alien detentions in that region. The warden-ICE relationship is further defined by the ICE Detention Operations Manual, which specifies the standards with which contracted local jails, such as the Kenosha facility, must comply. In particular, the manual provides that a local warden may not remove an alien detainee without the" }, { "docid": "2353133", "title": "", "text": "where Chen’s family lives in Fuzhou. This omission makes the citation misleading. . Chen did not appeal the denial of his request for protection under the Convention Against Torture to the Board. Thus, he cannot—and does not—raise that issue here. See Raghunathan v. Holder, 604 F.3d 371, 379 (7th Cir.2010); Korsunskiy v. Gonzales, 461 F.3d 847, 849 (7th Cir.2006) (citing 8 U.S.C. § 1252(d)(1)). . It is unclear whether Chen is also arguing that he has a well-founded fear of future persecution based on his wife's forced sterilization. But Chen did not raise this argument before the Board, so he is precluded from raising it here. See Raghunathan, 604 F.3d at 379; Korsunskiy, 461 F.3d at 849 (citing 8 U.S.C. § 1252(d)(1)). . The IJ found Chen's testimony credible concerning his practice of Falun Gong. . But Chen did not say that he intended to limit his practice to these locations out of any concern that he might be persecuted if he practiced elsewhere. . Our decision may have little impact on whether Chen is actually removed from the United States. At oral argument, counsel for the Attorney General stated that China generally will not issue travel documents to an alien ordered removed from the United States until all of the alien’s potential avenues of relief are exhausted. And China has a well-documented history of delaying or blocking repatriation of their nationals who are illegally present in the United States. See Alison Siskin, CRS Report for Cong., Immigration-Related. Detention: Current Legislative Issues 6 n. 38 (Jan. 12, 2012); Office of Inspector Gen., Audit Report No. 06-33, Detention and Removal of Illegal Aliens 17 n. 37 (Apr. 2006); Office of Inspector Gen., Audit Report No. 02-41, Immigration and Naturalization Serv. Institutional Removal Program 27 (Sept. 2002)." } ]

[ { "docid": "22699782", "title": "", "text": "considered . in terms of any additional physical or mental restrictions they may impose beyond those clearly demonstrated by the objective physical manifestations of disorders. Symptoms can sometimes suggest a greater severity of impairment than is demonstrated by objective and medical findings alone. While the claimant has the burden of proving that the disability results from a medically determinable physical or mental impairment, direct medical evidence of the cause and effect relationship' between the impairment and the degree of claimant’s subjective complaints need not be produced. The adjudicator may not disregard a claimant’s subjective complaints solely because the objective medical evidence does not fully support them. The absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant’s prior work record, and observations by third parties and treating and examining physicians relating to such matters as: 1. the claimant’s daily activities; 2. the duration, frequency and intensity of the pain; 3. precipitating and aggravating factors; 4. dosage, effectiveness and side effects of medication; 5. functional restrictions. The adjudicator is not free to accept or reject the claimant's subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole. [Emphasis in original.] The parties also agreed that the Secretary will transmit the agreed-upon language to adjudicators within the Eighth Circuit responsible for determining disability, including personnel in state and district offices, and personnel within the Social Security Administration, AUs, and the Appeals Council. The language is to be transmitted no later than July 18, 1984. This Court agrees with the above language as a correct statement of the law concerning the evaluation of pain and other subjective complaints for determining disability. This language thus serves as a correct restatement of our case law, to be followed in all administrative and judicial proceedings within the Eighth Circuit. This order" } ]

[ { "docid": "21645490", "title": "", "text": "the records from treating physicians conflicted with these medical opinions. The ALJ relied on Dr. McPeak’s determinations regarding Masterson’s physical abilities, strength assessments, and joint movement and functioning. The ALJ further noted that Masterson takes only non-steroidal anti-inflammatory drugs for pain, and that while he believed that Masterson experienced pain, objective tests showed nothing more than mild to moderate impairments at best, and that no treating physician restricted her activities in any way. Finally, the ALJ noted that no physician diagnosed her with-and she was not treated for-a mental impairment. The “relevant evidence” also included Masterson’s own description of her pain and limitations, see Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir.1995), which the ALJ considered and found not to be fully credible. Masterson takes issue with the ALJ’s discounting of her pain complaints; however, Masterson fails to show how the ALJ erred in that assessment. When evaluating evidence of pain, the ALJ must consider: (1) the claimant’s daily activities; (2) the subjective evidence of the duration, frequency, and' intensity of the claimant’s pain; (3) any precipitating or aggravating factors; (4) the dosage, effectiveness and side effects of any medication; and (5) the claimant’s functional restrictions. Baker v. Sec’y of Health & Human Services, 955 F.2d 552, 555 (8th Cir.1992); Polaski, 739 F.2d at 1322. Because pain, shortness of breath, weakness, or nervousness, for example, are difficult to measure, the ALJ may not .disregard a claimant’s subjective complaints of pain solely because the objective medical evidence does not fully support them. Polaski, 739 F.2d 1320. Rather, the absence of this evidence is just one of several factors used to evaluate the credibility of the testimony and complaints. The credibility of a claimant’s subjective testimony is primarily for the ALJ to decide, not the courts, but such assessments must be based upon substantial evidence. Baldwin, 349 F.3d at 558; Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir.1988); Benskin, 830 F.2d at 882. The ALJ must make express credibility determinations and set forth the inconsistencies in the record which cause him to reject the plaintiffs complaints. Robinson v. Sullivan, 956" }, { "docid": "21097874", "title": "", "text": "detracts from the Commissioner’s decision, as well as that which supports it. Freeman v. Apfel, 208 F.3d 687, 690 (8th Cir.2000). We may not reverse the Commissioner’s decision merely because substantial evidence exists in the record that would have supported a contrary outcome. Craig, 212 F.3d at 436. Rather, if we find it is possible to draw two inconsistent positions from the evidence and one of those positions represents the agency’s findings, we must affirm the agency’s decision. Scott v. Chater, 112 F.3d 367, 368 (8th Cir.1997). Wheeler first argues that the ALJ improperly discounted the credibility of Wheeler and her husband and did not correctly apply the credibility factors set forth in Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984) (subsequent history omitted). In order to properly evaluate a claimant’s subjective complaints of pain under Polaski, the ALJ is required to make a credibility determination by taking into account the following factors: (1) the claimant’s daily activities; (2) the duration, frequency, and intensity of the pain; (3) the dosage, effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and (5) functional restrictions. Hutton v. Apfel, 175 F.3d 651, 654-55 (8th Cir.1999), citing Polaski 739 F.2d at 1322. Other relevant factors include the claimant’s relevant work history and the absence of objective medical evidence to support the complaints. Hutton, 175 F.3d at 655. The ALJ may discount subjective complaints of pain if inconsistencies are apparent in the evidence as a whole. Hutton, 175 F.3d at 655. The ALJ explicitly found that Wheeler’s subjective complaints of pain were not credible to the extent alleged, both with specific reference to the above Polaski factors and in consideration of inconsistencies in the record as a whole. The ALJ determined that, although Wheeler had certain symptoms that limited her functional abilities, the evidence did not support Wheeler’s assertion that her symptoms were of such severity so as to preclude the performance of any type of work. The ALJ first noted that, despite Wheeler’s complaints of leg, joint, and back pain and immobility, Wheeler had had no treating physician for two years. See" }, { "docid": "20801321", "title": "", "text": "concluded that Baumgarten’s impairments did not rise to the level of severity required to meet disability status under the Act, but that her pain did prevent her from returning to her past relevant work. Moreover, the ALJ conceded that if Baumgarten’s pain were as severe as she claimed, she could not perform any work. After discounting her pain, however, the ALJ determined that Baumgarten is capable of light work and that there are significant numbers of jobs in the national economy that she can perform, such as general office clerk, hotel desk clerk and cashier. Baumgarten claims that the ALJ improperly discounted her subjective claims of pain and did not properly shift the burden to the Commissioner to prove that there are jobs that Baumgarten is capable of performing. II. A social-security claimant bears the burden of proving disability. Clark v. Shalala, 28 F.3d 828, 830 (8th Cir.1994). If, however, a claimant demonstrates that she is unable to return to her past work, the burden shifts to the Commissioner to show that work exists in the national economy that the claimant can perform. Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir.1992). We must affirm the district court’s judgment if there exists substantial evidence on the record as a whole supporting the ALJ’s determinations. Metz v. Shalala, 49 F.3d 374, 376 (8th Cir. 1995). Substantial evidence is “such relevant evidence as a reasonable mind might find adequate to support a conclusion.” Smith v. Shalala, 31 F.3d 715, 717 (8th Cir.1994). After reviewing the Commissioner’s decision under this standard, we must remand for a re-evaluation of the record and further proceedings consistent therewith. First, we consider Baumgarten’s argument that the ALJ improperly discredited her subjective complaints of pain. Using the guidelines set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984), the ALJ determined that Baumgarten’s pain was less severe than she claimed. Polaski requires the ALJ to consider: (1) the claimant’s daily activities; (2) the duration, frequency and intensity of the pain; (3) dosage, effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and (5) functional" }, { "docid": "2097249", "title": "", "text": "v. Shalala, 38 F.3d 1019, 1022 (8th Cir.1994). If, after undertaking this review, we determine that “it is possible to draw two inconsistent positions from the evidence and one of those positions represents the [Secretary’s] findings, we must affirm the decision” of the Secretary. Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir.1992). Siemers contends that the ALJ improperly discredited her complaints of disabling pain in assessing whether she suffered from a severe impairment or combination of impairments. An ALJ must consider a claimant’s subjective complaints of pain in conformity with the standard adopted by this court in Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir.1984) (subsequent history omitted). Pursuant to Polaski, an ALJ may not discount a claimant’s subjective complaints of pain solely because no objective medical evidence exists to support its existence. Id. at 1322; see also 20 C.F.R. § 404.1529(c)(2). Rather, the ALJ is allowed to consider this evidence along with the claimant’s work history and observations by third parties and treating physicians relating to: (1) the claimant’s daily activities; (2) the duration, frequency, and intensity of the pain; (3) any aggravating factors; (4) the dosage, effectiveness, and side effects of any medication; and (5) functional restrictions. Polaski, 739 F.2d at 1322. The ALJ “must give full consideration to all of the evidence presented relating to subjective complaints” and is not free to discredit those complaints unless they are inconsistent with the evidence contained in the record as a whole. Id. An ALJ who determines that a claimant’s testimony regarding pain is not credible must make specific findings outlining the reasons supporting that conclusion. Ghant v. Bowen, 930 F.2d 633, 637 (8th Cir.1991). In the present case, the ALJ specifically delineated the Polaski factors and determined that, given the inconsistencies in Siemers’ testimony, her daily activities, and the medical evidence of record, her testimony concerning pain was not credible. The ALJ specifically set forth the following inconsistencies: Siemers complains of intense back pain but the clinical findings have been minimal; on one occasion she dated the onset of her low back pain at 20-30 years ago," }, { "docid": "23518392", "title": "", "text": "“[a]n ALJ’s failure to consider or discuss a treating physician’s opinion that a claimant is disabled constitutes error where, as here, the record contains no contradictory medical opinion.” Id. at 285-86. The ALJ’s decision discussed the medical evaluations contained in Dr. Gun-tharp’s letter and noted relevant information from the doctor’s treatment notes. Although the ALJ apparently incorporated Dr. Gun-tharp’s findings into his decision, he did not specifically discredit the physician’s conclusions. Black, contending that the letter was an unequivocal statement of Dr. Guntharp’s opinion, alleges this was an error. Although required to develop the record fully and fairly, an ALJ is not required to discuss every piece of evidence submitted. See Miller v. Shalala, 8 F.3d 611, 613 (8th Cir.1993) (per curiam). An ALJ’s failure to cite specific evidence does not indicate that such evidence was not considered, see Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir.1995). Given the ALJ’s specific references to the medical findings set forth in Dr. Guntharp’s letter, it is highly unlikely that the ALJ did not consider and reject Dr. Guntharp’s opinion that Black was disabled as a result of her extreme scoliosis. Black also argues that the ALJ improperly discredited her subjective complaints of pain. “As is true in many disability cases, there is no doubt that the claimant is experiencing pain; the real issue is how severe that pain is.” Woolf, 3 F.3d at 1213. In analyzing a claimant’s subjective complaints of pain, an ALJ must examine: (1) the claimant’s daily activities; (2) the duration, frequency, and intensity of the pain; (3) dosage, effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and (5) functional restrictions. See Polaski, 739 F.2d at 1322. Other relevant factors include the claimant’s relevant work history and the absence of objective medical evidence to support the complaints. See id. The ALJ may discount subjective complaints of pain if inconsistencies are apparent in the evidence as a whole. See Spradling, 126 F.3d at 1075. Applying the Polaski directives, the ALJ examined the objective medical evidence of Black’s physiological impairments and the inconsistencies in Black’s claims and" }, { "docid": "2341903", "title": "", "text": "ALJ, however, denied appellant’s application for Title II benefits, finding that appellant was not under a “disability” at anytime when he met the earnings requirement. McClees filed an appeal in federal district court. By order, dated December 17, 1991, the judge affirmed the Secretary’s denial of benefits. Appellant seeks review of the denial of Title II benefits. Because the appellant’s medical history is set forth in detail in our previous opinion, see McClees I, supra at 451, we turn directly to a review of the Secretary’s decision on remand. Our task is limited to a determination of whether the Secretary’s decision is supported by substantial evidence in the record as a whole. Onstead v. Sullivan, 962 F.2d 803, 804 (8th Cir.1992). “Substantial evidence is that which a reasonable mind might accept as adequate to support the Secretary’s conclusion.” Id. (quoting Whitehouse v. Sullivan, 949 F.2d 1005, 1007 (8th Cir.1991)). The claimant bears the burden of proving a medically determinable impairment or impairments which prevented him from performing his past relevant work. Pickner v. Sullivan, 985 F.2d 401, 403 (8th Cir.1993); 42 U.S.C. § 423(d)(1). In this case, the Secretary concluded that appellant was not disabled because he was able to perform his past relevant work as a barber. Appellant contends that the ALJ improperly applied the Polaski factors in rejecting appellant’s subjective complaints of pain and functional restrictions. In Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984), this Court held that a lack of objective medical evidence to support the claimant’s subjective complaints is only one factor to be considered in evaluating the claimant’s testimony. In addition, The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant’s prior work record, and observations by third parties and treating and examining physicians relating to such matters as: (1) the claimant’s daily activities; (2) the duration, frequency and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; (5) functional restrictions. Id. at 1322. Appellant contends that the ALJ erred in rejecting his subjective complaints of pain." }, { "docid": "12062191", "title": "", "text": "Crohn’s disease and that she did not meet the dura- tional requirement of 42 U.S.C. § 1382c(a)(3)(A), which provides that to be eligible for SSI benefits, a claimant must be “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” The ALJ must consider the following factors when a claimant asserts subjective complaints of pain in support of a claim for Social Security benefits: The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant’s prior work record, and observations by third parties and treating and examining physicians relating to such matters as: 1. the claimant’s daily activities; 2. the duration, frequency and intensity of the pain; 3. precipitating and aggravating factors; 4. dosage, effectiveness and side effects of medication; 5. functional restrictions. * * * Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole.- Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984) (subsequent history omitted). After applying Polaski, the ALJ gave the following reasons for denying Dix benefits: 1) no physician had indicated that Dix is unable to work; 2) her condition is under fairly good control and problems are relieved by medication; 3) she greatly exaggerated her problems at the hearing when she stated she had constant diarrhea and had not been free of a flare-up for more than one month; and 4) although her Crohn’s disease was inactive, she did not work in 1977, 1978, 1982, 1983, or 1984, a fact that did not add to her credibility. We review the ALJ’s denial of benefits by determining whether there is substantial evidence on the record as a whole to support the ALJ’s decision. Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.1989); see also 42 U.S.C. § 405(g) (factual findings of the Secretary shall be conclusive if supported by substantial evidence). Dix was seen by several" }, { "docid": "23210901", "title": "", "text": "impairment” lasting for at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (1994). The burden of showing a medically determinable impairment is on the claimant. See § 423(d)(5)(A) (“An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner ... may require.”). We first consider Jones’s argument that the ALJ improperly discredited his subjective complaints of pain. When an individual’s subjective complaints of pain are not fully supported by the medical evidence in the record, the ALJ may not, based solely on his personal observations, reject the complaints as incredible. See, e.g., Sullins v. Shalala, 25 F.3d 601, 603 (8th Cir.1994), cert. denied, 513 U.S. 1076, 115 S.Ct. 722, 130 L.Ed.2d 627 (1995). Father, the ALJ must consider all the evidence relating to the claimant’s subjective complaints, including his previous work record, and observations by third parties and treating and examining physicians relating to his daily activities; the duration, frequency and intensity of his pain; precipitating and aggravating factors; dosage, effectiveness and side effects of medication; and functional restrictions. See Polaski v. Heckler, 751 F.2d 943, 948-50 (8th Cir.1984) (Polaski I). “[S]uch complaints may be discounted if there are inconsistencies in the evidence as a whole.” Sullins, 25 F.3d at 603. If, based on the Polaski I factors, the ALJ determines that the claimant’s subjective complaints are not fully credible, he must make an express credibility finding and give his reasons for discrediting the claimant’s testimony. See Hall v. Chater, 62 F.3d 220, 223 (8th Cir.1995); Chamberlain, 47 F.3d at 1494 (“Where conflicting allegations and claims exist, credibility findings are for the ALJ to make.”). ‘We will not disturb the decision of an ALJ who seriously considers, but for good reasons explicitly discredits, a claimant’s testimony of disabling pain.” Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir.1992). The District Court concluded that the evidence as a whole supported the ALJ’s finding that Jones’s subjective complaints were not fully credible. We agree. Although an ALJ may not disregard a claimant’s subjective complaints of pain merely" }, { "docid": "20375004", "title": "", "text": "assessment of Harris’ spinal abnormalities, the neurological surgeon suggested that Harris should not lift, carry, or handle objects weighing more than 40 or 50 pounds. In May 1991, Harris had a psychological examination in which he exhibited below average potential for tasks requiring speed and dexterity. II. DISCUSSION Our limited role under 42 U.S.C. § 405(g) is to determine whether there is substantial evidence in the record as a whole to support the decision of the Secretary, and not to reweigh the evidence or try the issues de novo. Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir.1992). If supported by substantial evidence, the Secretary’s findings must be affirmed. Looker v. Sullivan, 968 F.2d 725, 727 (8th Cir.1992). Further, we may not reverse a decision of the Secretary merely because substantial evidence would have supported an opposite conclusion. Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir.1993) (“Woolf). Harris contends that the ALJ improperly discredited his subjective complaints of lower back pain. As we have said before, the adjudicator may not disregard a claimant’s subjective complaints solely because the objective medical evidence does not fully support them. Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir.1984) (“Polaski ”) (subsequent history omitted). The absence of an objective medical basis to support the claimant’s subjective allegations of pain is simply one factor to be considered along with all of the evidence presented relating to subjective complaints. Id. Specifically, under our Polaski decision, an ALJ must look at five factors when determining the credibility of a claimant’s subjective allegations of pain: (1) the claimant’s daily activities; (2) the duration, frequency and intensity of the pain; (3) aggravating and precipitating factors; (4) dosage, effectiveness and side effects of medication; and (5) functional restrictions. Id.; see Baker v. Secretary, 955 F.2d 552, 555 (8th Cir.1992). Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole. Woolf, 3 F.3d at 1214. However, an ALJ must do more than rely on the mere invocation of “Polaski” to insure safe passage for his or her decision through the course of appellate review. An" }, { "docid": "23404535", "title": "", "text": "testimony regarding the severity of her pain, in determining that she had no medically determinable mental impairment, and in ultimately finding that she could perform her past relevant work. II. We will uphold the ALJ’s decision to deny benefits if it is supported by substantial evidence on the record as a whole; that is, if a reasonable mind would find the evidence adequate to support the ALJ’s conclusion. Baumgarten v. Chater, 75 F.3d 366, 368 (8th Cir.1996). We must consider both evidence that supports and evidence that detracts from the Secretary’s decision, but we may not reverse merely because substantial evidence exists for the opposite decision. Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir.1993). In discounting Johnson’s subjective complaints of pain, the ALJ followed the factors set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). Under Polaski, the ALJ must consider the claimant’s prior work history, as well as any observations by third parties regarding: (1) the claimant’s daily activities; (2) the duration, frequency, and intensity of the pain; (3) dosage, effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and (5) functional restrictions. Id. An ALJ may discount a claimant’s subjective complaints of pain only if there are inconsistencies in the record as a whole. Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir.1993). Applying these factors, the ALJ specifically found that although Johnson’s consistent work history did not detract from her credibility, it was outweighed by other factors. The ALJ pointed to inconsistencies in the record that detracted from the credibility of Johnson’s complaints of pain. After a careful examination of the record as a whole, we find that it supports the ALJ’s determination. The record supports the ALJ’s contention that Johnson’s sparse use of pain medication does not support her complaints of severe pain. We have held that a claimant’s failure to take strong pain medication is “inconsistent with subjective complaints of disabling pain.” Haynes v. Shalala, 26 F.3d 812, 814 (8th Cir.1994). Johnson reported to Dr. Ball in June 1992 that she was taking only about a half tablet of" }, { "docid": "5528066", "title": "", "text": "to work. See Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir.2005); Gowell v. Apfel, 242 F.3d 793, 798 (8th Cir.2001). Substantial evidence supports the ALJ’s conclusion Schultz’s ankle did not meet a listed impairment. B. Polaski Analysis Additionally, Schultz argues the ALJ failed to properly perform an analysis under Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984). “[Schultz’s] subjective complaints may be discounted if there are inconsistencies in the record as a whole.” Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir.2005). We will defer to an ALJ’s credibility finding as long as the “ALJ explicitly discredits a claimant’s testimony and gives a good reason for doing so.” Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir.2001) (quoting Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir.1990)). Under Polaski, to evaluate Schultz’s subjective complaints of pain, the ALJ, in addition to considering “[t]he absence of an objective medical basis which supports the degree of severity of subjective complaints,” Polaski, 739 F.2d at 1322, must examine “the claimant’s prior work record and observations of third parties and physicians relating to: (1) the claimant’s daily activities; (2) the duration, frequency and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; and (5) functional restrictions.” Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir.2006). Although the ALJ never expressly cited Polaski (which is our preferred practice), the ALJ cited and conducted an analysis pursuant to 20 C.F.R. §§ 404.1529 and 416.929, which largely mirror the Polaski factors. See Randolph v. Barnhart, 386 F.3d 835, 842 (8th Cir.2004). Specifically, the ALJ found the objective medical evidence did not support Schultz’s subjective complaints and Schultz had a good work history. The ALJ also found (1) Schultz spends most days sitting at home watching television, although this is by choice and not for any medical reason; (2) the signs of chronic and severe musculoskeletal pain are not present; (3) nothing exists regarding precipitating and aggravating factors; (4) medications control Schultz’s hypertension, nausea, and vomiting, and Schultz neither takes strong doses of pain medication nor experiences adverse side-effects;" }, { "docid": "23518393", "title": "", "text": "Dr. Guntharp’s opinion that Black was disabled as a result of her extreme scoliosis. Black also argues that the ALJ improperly discredited her subjective complaints of pain. “As is true in many disability cases, there is no doubt that the claimant is experiencing pain; the real issue is how severe that pain is.” Woolf, 3 F.3d at 1213. In analyzing a claimant’s subjective complaints of pain, an ALJ must examine: (1) the claimant’s daily activities; (2) the duration, frequency, and intensity of the pain; (3) dosage, effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and (5) functional restrictions. See Polaski, 739 F.2d at 1322. Other relevant factors include the claimant’s relevant work history and the absence of objective medical evidence to support the complaints. See id. The ALJ may discount subjective complaints of pain if inconsistencies are apparent in the evidence as a whole. See Spradling, 126 F.3d at 1075. Applying the Polaski directives, the ALJ examined the objective medical evidence of Black’s physiological impairments and the inconsistencies in Black’s claims and determined that Black’s subjective complaints of disabling pain lacked credibility. The ALJ observed that although Black complained of debilitating pain, she was still able at times to engage in many normal daily activities including household work, visiting friends, and attending church. See Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir.1997). The ALJ also noted that although Black does experience some limitation, pain, and discomfort, she has never undergone surgery and has relied on a conservative course of treatment, including exercises, home cervical traction, a back brace, and medication. See Robinson v. Sullivan, 956 F.2d 836, 840 (8th Cir.1992). Black claims that physical activity frequently precipitates and aggravates her severe pain. The ALJ cited Black’s daily activities as inconsistent with her assertions. It was for the ALJ to resolve any contradictory evidence of Black’s functional limitations. See Bentley v. Shalala, 52 F.3d 784, 787 (8th Cir.1995) (“Where the medical evidence is equally balanced, as we find it is here, the ALJ resolves the conflict.”). The objective medical evidence revealed scoliosis, spondylolisthesis, and headaches. The ALJ" }, { "docid": "23404534", "title": "", "text": "pay. She takes 800 milligrams of Motrin three times per day, even though she has irritable bowel syndrome and the medicine irritates her stomach. She also uses ice packs for the pain. The ALJ, following the five-step analysis set out in 20 C.F.R. §§ 404.1520 and 416.920, concluded that Johnson did not have a mental impairment but that she did have a severe combination of physical impairments that included fibromyalgia, obesity, mild endometriosis controlled with medication, hypothyroid controlled with medication, and minimal, if any, degenerative changes of the lumbar spine. The ALJ found, however, that the impairments did not meet or equal a listed impairment presumed to be disabling. The ALJ found that Johnson’s subjective complaints of severe and debilitating pain and other symptoms were not credible and that although she could not lift and carry more than twenty-five pounds, she retained the residual functional capacity to perform her past relevant work and thus was not disabled within the meaning of the Act. Johnson argues on appeal that the ALJ erred in discounting her subjective testimony regarding the severity of her pain, in determining that she had no medically determinable mental impairment, and in ultimately finding that she could perform her past relevant work. II. We will uphold the ALJ’s decision to deny benefits if it is supported by substantial evidence on the record as a whole; that is, if a reasonable mind would find the evidence adequate to support the ALJ’s conclusion. Baumgarten v. Chater, 75 F.3d 366, 368 (8th Cir.1996). We must consider both evidence that supports and evidence that detracts from the Secretary’s decision, but we may not reverse merely because substantial evidence exists for the opposite decision. Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir.1993). In discounting Johnson’s subjective complaints of pain, the ALJ followed the factors set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). Under Polaski, the ALJ must consider the claimant’s prior work history, as well as any observations by third parties regarding: (1) the claimant’s daily activities; (2) the duration, frequency, and intensity of the pain; (3) dosage," }, { "docid": "2097248", "title": "", "text": "with depression, these impairments are not severe and do not significantly limit her ability to perform work-related activities. In reaching this conclusion, the ALJ rejected Siemers’ allegations concerning the degree and severity of her pain and depression because her testimony was inconsistent with the medical evidence contained in the record and her daily activities. Therefore, the ALJ terminated the sequential analysis at this step and denied Siemers benefits. The appeals council considered additional evidence submitted by Siemers and her daughter and denied Siemers’ request for further review. Siemers then sought judicial review of the Secretary’s decision in the district court. The district court granted the Secretary’s motion for summary judgment, concluding that substantial evidence exists in the record to support the Secretary’s decision. Siemers appeals. II. This court’s “task is limited to a determination of whether the Secretary’s decision is supported by substantial evidence in the record as a whole.” McClees v. Shalala, 2 F.3d 301, 302 (8th Cir.1993). We consider evidence that supports the Secretary’s decision along with evidence that detracts from it. Barrett v. Shalala, 38 F.3d 1019, 1022 (8th Cir.1994). If, after undertaking this review, we determine that “it is possible to draw two inconsistent positions from the evidence and one of those positions represents the [Secretary’s] findings, we must affirm the decision” of the Secretary. Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir.1992). Siemers contends that the ALJ improperly discredited her complaints of disabling pain in assessing whether she suffered from a severe impairment or combination of impairments. An ALJ must consider a claimant’s subjective complaints of pain in conformity with the standard adopted by this court in Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir.1984) (subsequent history omitted). Pursuant to Polaski, an ALJ may not discount a claimant’s subjective complaints of pain solely because no objective medical evidence exists to support its existence. Id. at 1322; see also 20 C.F.R. § 404.1529(c)(2). Rather, the ALJ is allowed to consider this evidence along with the claimant’s work history and observations by third parties and treating physicians relating to: (1) the claimant’s daily activities; (2)" }, { "docid": "8018402", "title": "", "text": "(emphasis, added). We agree with Casey that the ALJ incorrectly recounted Dr. Catron’s ultimate conclusion regarding her ability to work. This mistake is without consequence, however, because the value of a medical source’s opinion is found in “judgments about the nature and severity” of a claimant’s impairments; a medical source’s conclusions that a claimant is “ ‘disabled’ or ‘unable to work’ ” are “not. give[n] any special significance” because such disposi-tive findings are reserved to the ALJ. 20 C.F.R. § 404.1527(a)(2) & (e)(1),(3). The ALJ correctly recounted Dr. Catron’s opinions about' Casey’s functional limitations: Viewing Dr. Catron’s report in the context of the whole record, we find that substantial evidence supports the ALJ’s determination that Casey was not disabled. B. Casey’s second argument on appeal is that the ALJ erred in finding her statements about the intensity and severity of her symptoms “not fully credible.” J.A. at 14. In Polaski v. Heckler, we noted several factors that an ALJ must consider in evaluating a claimant’s subjective complaints. 739 F.2d 1320, 1322 (8th Cir.1984) (per curiam order). In addition to objective medical evidence, an ALJ must examine “the claimant’s prior work record, and observations by third parties and treating and examining physicians relating to ... 1. the claimant’s daily activities; 2. the duration, frequency and intensity of the pain; 3. precipitating and aggravating factors; 4. dosage, effectiveness and side effects of medication; [and] 5. functional restrictions.” Id. While these considerations must be taken into account, the ALJ’s decision need not include a discussion of how every Polaski factor relates to the claimant’s credibility. Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir.2004). The ALJ may discount subjective complaints of pain if they are inconsistent with the evidence as a whole. Polaski, 739 F.2d at 1322. The ALJ properly identified the Polaski factors and considered evidence relevant to those factors. The ALJ ultimately found that Casey’s subjective complaints' of pain were inconsistent with medically objective evidence and the observations of third parties. The ALJ’s analysis of the medical evidence has been discussed above. Regarding the observations of third parties, the ALJ began" }, { "docid": "1888512", "title": "", "text": "by substantial evidence on the record as a whole. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir.2000). Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion. Id. In determining whether existing evidence is substantial, we consider evidence that detracts from the Commissioner’s decision as well as evidence that supports it. Craig v. Apfel, 212 F.3d 433, 436 (8th Cir.2000). As long as there is substantial evidence on the record as a whole to support the Commissioner’s decision, we may not reverse it because substantial evidence exists in the record that would have supported a contrary outcome, id., or because we would have decided the case differently. Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir.1992). A. Subjective Complaints of Pain First, Gowell contends that the ALJ erred in discounting her allegations of chronic, disabling pain. In analyzing a claimant’s subjective complaints, such as pain, an ALJ must consider: (1) the claimant’s daily activities; (2) the duration, frequency, and intensity of the condition; (3) dosage, effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and (5) functional restrictions. Black v. Apfel, 143 F.3d 383, 386 (8th Cir.1998) (factors from Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). “Other relevant factors include the claimant’s relevant work history and the absence of objective medical evidence to support the complaints.” Id. As we have often stated, “there is no doubt that the claimant is experiencing pain; the real issue is how severe that pain is.” Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir.1993) (quoting Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir.1991)). We will not disturb the decision of an ALJ who considers, but for good cause expressly discredits, a claimant’s complaints of disabling pain, even in cases involving somatoform disorder. Reed v. Sullivan, 988 F.2d 812, 815 (8th Cir.1993); Metz v. Shalala, 49 F.3d 374, 377 (8th Cir.1995). We conclude that the ALJ’s determination is supported by substantial evidence. The record presents many examples of Gowell’s physicians reducing or ending her medication" }, { "docid": "14262484", "title": "", "text": "instructed the vocational expert to consider those subjective complaints of Ms. Cur-ran-Kicksey’s that the ALJ had discredited and omitted in the first instance. Of these omissions, the most significant concerned Ms. Curran-Kicksey’s testimony that she needed to lie down and rest frequently throughout the day. The vocational expert testified that such a person would not be able to.perform work in the national economy. Ms. Curran-Kicksey’s complaint, simply stated, is that the ALJ erred by discrediting her subjective testimony concerning her functional capacity for working in the national economy. As we have already said, we review the ALJ’s decision to determine whether the Commissioner’s factual findings are supported by substantial evidence on the record as a whole. See Singh v. Apfel, 222 F.3d 448, 451 (8th Cir.2000). In determining whether substantial evidence exists for the ALJ’s decision, we consider “evidence that detracts from the [Commissioner’s] decision as well as evidence that supports it.” Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir.1993). “If, after review, we find it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner’s findings, we must affirm the denial of benefits.” Mapes v. Chater, 82 F.3d 259, 262 (8th Cir.1996). In evaluating a claimant’s subjective allegations of pain and disability, we follow the principles outlined in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). An ALJ may not discount subjective complaints of pain solely because they are not fully supported by the objective medical evidence, but such complaints may be discounted based on inconsistencies in the record as a whole. Id. The lack of supporting objective medical evidence may be used as “one factor to be considered in evaluating the credibility of the testimony and complaints.” Id. In addition to the medical evidence, the ALJ is required to assess a claimant’s subjective complaints in light of her prior work record and in light of observations by third parties and physicians relating to the claimant’s daily activities, to the duration, frequency, and intensity of pain, to any precipitating or aggravating factors, to the dosage, effectiveness, and side effects of" }, { "docid": "23084303", "title": "", "text": "the opposite conclusion. Id. Furthermore, “we defer to the ALJ’s determinations regarding the credibility of testimony, so long as they are supported by good reasons and substantial evidence.” Guilliams, 393 F.3d at 801. Pelkey first argues that the ALJ failed to adequately explain his adverse credibility finding as to Pelkey’s complaints of pain. In evaluating a claimant’s subjective complaints of pain, the “absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). The ALJ also examines the claimant’s prior work record and observations of third parties and physicians relating to: (1) the claimant’s daily activities; (2) the duration, frequency and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; and (5) functional restrictions. Id. at 1322; see also Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.2004). Although “[subjective complaints may be discounted if there are inconsistencies in the evidence as a whole,” Polaski, 739 F.2d at 1322, the ALJ “must give reasons for discrediting the claimant,” Strongson, 361 F.3d at 1072. In this case, “[although the ALJ did not explicitly discuss each Polaski factor in a methodical fashion, he acknowledged and considered those factors before discounting [the claimant’s] subjective complaints of pain.” Brown v. Chater, 87 F.3d 963, 966 (8th Cir.1996); see also Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir.2004) (“The ALJ is not required to discuss each Polaski factor as long as the analytical framework is recognized and considered.”). The ALJ listed the Polaski factors and then stated that he had “carefully considered] all the evidence of record, specifically including the credibility factors set forth above.” After discussing the evidence, the ALJ concluded that the objective medical evidence and the record as a whole were inconsistent with Pelkey’s testimony that his pain was totally disabling. In assessing Pelkey’s credibility, the ALJ first commented on Pelkey’s excellent work record. He then recounted the daily activities Pelkey was able to perform, such as household chores, mowing the lawn," }, { "docid": "20375005", "title": "", "text": "complaints solely because the objective medical evidence does not fully support them. Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir.1984) (“Polaski ”) (subsequent history omitted). The absence of an objective medical basis to support the claimant’s subjective allegations of pain is simply one factor to be considered along with all of the evidence presented relating to subjective complaints. Id. Specifically, under our Polaski decision, an ALJ must look at five factors when determining the credibility of a claimant’s subjective allegations of pain: (1) the claimant’s daily activities; (2) the duration, frequency and intensity of the pain; (3) aggravating and precipitating factors; (4) dosage, effectiveness and side effects of medication; and (5) functional restrictions. Id.; see Baker v. Secretary, 955 F.2d 552, 555 (8th Cir.1992). Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole. Woolf, 3 F.3d at 1214. However, an ALJ must do more than rely on the mere invocation of “Polaski” to insure safe passage for his or her decision through the course of appellate review. An ALJ who determines that the claimant’s testimony as to pain is not credible must make specific findings explaining that conclusion. Ghant v. Bowen, 930 F.2d 633, 637 (8th Cir.1991). In the present case, the ALJ acknowledged the duty to consider the Polaski factors in his evaluation of Harris’ subjective complaints, and, after consideration of these factors, the ALJ found that Harris’ complaints of pain were exaggerated. The ALJ found that the record failed to show any impairment which reasonably could be expected to cause the level of pain and functional limitation of which Harris complained. In addition to the inconsistent medical evidence, the ALJ also noted that Harris had not sought medical care for his back since 1989. The ALJ also considered the fact that Harris demonstrated little restriction in range of motion in his spine and had a normal gait. Harris himself agreed with a physician’s report that stated he could stand, sit, and walk for up to two hours. He could also bend and squat. The ALJ also took into account the duration" }, { "docid": "20801322", "title": "", "text": "the national economy that the claimant can perform. Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir.1992). We must affirm the district court’s judgment if there exists substantial evidence on the record as a whole supporting the ALJ’s determinations. Metz v. Shalala, 49 F.3d 374, 376 (8th Cir. 1995). Substantial evidence is “such relevant evidence as a reasonable mind might find adequate to support a conclusion.” Smith v. Shalala, 31 F.3d 715, 717 (8th Cir.1994). After reviewing the Commissioner’s decision under this standard, we must remand for a re-evaluation of the record and further proceedings consistent therewith. First, we consider Baumgarten’s argument that the ALJ improperly discredited her subjective complaints of pain. Using the guidelines set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984), the ALJ determined that Baumgarten’s pain was less severe than she claimed. Polaski requires the ALJ to consider: (1) the claimant’s daily activities; (2) the duration, frequency and intensity of the pain; (3) dosage, effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and (5) functional restrictions. Hall v. Chater, 62 F.3d 220, 223 (8th Cir.1995). Applying these factors, the ALJ pointed to inconsistencies in the record that detract from the credibility of Baumgarten’s complaints of pain. After a careful examination of the record, we find the ALJ’s rationale to be partially flawed. Several of the alleged inconsistencies relied on by the ALJ are not supported by the record. These discrepancies undermine the ALJ’s ultimate conclusion that Baumgarten’s pain is less severe than she claims. First, the ALJ asserted that Baumgarten’s alleged swelling of her fingers was not supported by medical evidence and was never presented to any examining physician. The record is to the contrary. In reports dated April 24, 1991 and February 12, 1992, Dr. Martire, one of Baumgarten’s physicians, noted the problem of her swollen fingers. The ALJ next stated that upon examination by Dr. Martire, Baumgarten reported no difficulty staying asleep, although at other points in the record she claims disturbed sleep. In contrast, we find the record to show that Baumgarten consistently complained to Dr. Martire" } ]

[ { "docid": "1719608", "title": "", "text": "of costs under Fed.R.Civ.P. 54(d) under the abuse of discretion standard of review. See Flint v. Haynes, 651 F.2d 970 (4th Cir.1981). The Flint court relied upon its examination of 28 U.S.C. § 1915(a) and (e). Subsection (a) provides that “Any court of the United States may authorize the commencement ... of any suit ... or appeal therein, without prepayment of fees and costs____” Subsection (e) provides that “Judgment may be rendered for costs at the conclusion of the suit or action as in other cases____” The court reasoned that [t]he use of the word “prepayment” in subsection (a) indicates that Congress did not intend to waive forever the payment of costs, but rather it intended to allow qualified litigants to proceed without having to advance the fees and costs associated with the litigation. By permitting the court to enter judgment for costs “as in other cases,” subsection (e) evinces a congressional intent that litigants may eventually be liable for costs. It is clear that section 1915 contemplates the postponement of fees and costs for litigants who are granted in forma pauperis status. 651 F.2d at 972 (footnote omitted). Because the statute refers to “any suit ... or appeal,” 28 U.S.C. § 1915(a) (emp. added), it would seem that the Flint court’s reasoning would apply with equal force to costs under Rule 39(a), and we so hold. However, we disagree with appellees’ contention that costs must be assessed against Harris. The decision to enter judgment for costs is clearly discretionary. Indeed, the Flint court expressly acknowledged that “a court, consistent with the discretion vested in it by section 1915(e), may choose not to tax costs against an indigent.” 651 F.2d at 972 n. 5. Thus, even though costs may be assessed against an indigent, it would, nonetheless, be within our discretion to deny appellees’ motion to tax costs. Having determined that the award of costs of appeal against an indigent is within the appellate court’s sound discretion, we must now articulate some standard to guide this exercise of discretion. In our view, an appellate court’s discretion to award costs against" } ]

[ { "docid": "22458514", "title": "", "text": "Appellants’ Br. at 11. The Plaintiffs and Amicus therefore contend that the District Court should have considered the parties’ relative ability to bear the Defendants’ costs in weighing the equities in this case. In Smith, 47 F.3d at 99-100, we rejected this potential Rule 54(d)(1) factor; so too have the clear majority of courts and commentators, see, e.g., Cherry v. Champion Int’l Corp., 186 F.3d 442, 448 (4th Cir.1999); Reed v. International Union of United Auto., Aerospace & Agric. Implement Workers, Local Union No. 663, 945 F.2d 198, 204 (7th Cir.1991); Moore’s, supra, § 54.101[b], at 54-153. Thus, the District Court rightly declined to accept the Plaintiffs’ invitation to consider this factor. E. In sum, we hold that a district court may consider the following factors in reviewing a clerk of court’s costs award: (1) the prevailing party’s unclean hands, bad faith, dilatory tactics, or failures to comply with process during the course of the instant litigation or the costs award proceedings; and (2) each of the losing parties’ potential indigency or inability to pay the full measure of a costs award levied against them. In contrast, a district court may not consider (1) the losing parties’ good faith in pursuing the instant litigation (although a finding of bad faith on their part would be a reason not to reduce costs); (2) the complexity or closeness of the issues — in and of themselves— in the underlying litigation; or (3) the relative disparities in wealth between the parties. Again, the presumption is that costs, as defined by the relevant statutes and case law, will be awarded in full measure. Only if the losing party can introduce evidence, and the district court can articulate reasons within the bounds of its equitable power, should costs be reduced or denied to the prevailing party. For the reasons set forth above, we reverse and remand so that the District Court can reconsider the “indigency” factor described herein. VI. Apportioning the Costs Award Among the Plaintiffs The final issue is whether the District Court erred in imposing liability for costs jointly and severally among the" }, { "docid": "22458503", "title": "", "text": "factor, given the affidavits that the Plaintiffs presented regarding their indigency. Therefore, the District Court’s order imposing costs must be set aside. Stating our position more precisely, we hold that if a losing party is indigent or unable to pay the full measure of costs, a district court may, but need not automatically, exempt the losing party from paying costs. Such an approach is somewhat at odds with the traditional rule at law that the prevailing party was automatically entitled to its costs, but it is consistent with the rule at equity that the district court exercise its discretion to insure that the award be equitable. See supra Section II.A. Allowing for the indigency factor in certain cases is also in keeping with the American tradition of not providing total reimbursement. See id. As was noted above, see id., the types of costs recoverable under Rule 54(d)(1) are quite circumscribed. These costs “do not include such litigation expenses as attorney’s fees and expert witness fees in excess of the standard daily witness fee,” Friedman v. Ganassi, 853 F.2d 207, 209 (3d Cir.1988), and as a result, while a prevailing party is awarded its Rule 54(d)(1) costs, those costs often fall well short of the party’s actual litigation expenses, see 10 Wright et al., supra, § 2666, at 202-04; see also 10 Moore’s, supra, § 54.103, at 54-174 to 54-197. The plaintiffs have introduced evidence that they are indigent or unable to pay the large costs award imposed in this case. See supra Part IV. We will therefore reverse the order of the District Court on this point. On remand, the District Court should consider this evidence and the “indigency or inability to pay” factor. C. The next disputed factor is the good faith of the losing party (here the Plaintiffs) and the closeness and difficulty of the issues that they raised. We have no doubt that the Plaintiffs acted in good faith, and our prior opinions in this matter reflect the seriousness, closeness, and difficulty of the many issues that they raised. This was a classic close case, brought in" }, { "docid": "22458498", "title": "", "text": "Secretary of Pub. Welfare, 758 F.2d 897, 926 (3d Cir.1985). To overcome the presumption favoring the prevailing party and to deny that party costs, a district court must “ ‘support[ ] that determination with an explanation.’ ” Institutionalized Juveniles, 758 F.2d at 926 (quoting Samuel v. University of Pittsburgh, 538 F.2d 991, 999 (3d Cir.1976)). Moreover, the losing party bears the burden of making the showing that an award is inequitable under the circumstances. See 10 Moore’s, supra, § 54.101, at 54-151 & n. 7 (collecting cases). Reported cases have discussed a number of equitable factors, most advanced by the parties herein, that a district court may consider in determining a costs award. The parties, as well as Amicus — the Pennsylvania Trial Lawyer’s Association — have advanced a number of factors as candidates for reviewing a costs award imposed by the clerk of court. These factors include: (1) the unclean hands, or bad faith or dilatory tactics, of the prevailing party; (2) the good faith of the losing party and the closeness and difficulty of the issues they raised; (3) the relative disparity of wealth between the parties; and (4) the indigence or inability to pay a costs award by a losing party. While the first of these factors is not implicated in this case, the propriety of a court considering each of the remaining factors is in dispute. The “unclean hands” factor is not in dispute because the Plaintiffs do not assert that the named Defendants engaged in any acts that would implicate this factor. We reaffirm, however, that in an appropriate case, the unclean hands factor is a relevant one for district courts to consider. See Smith v. Southeastern Pa. Transp. Auth., 47 F.3d 97, 99 (3d Cir.1995) (per curiam) (recognizing this factor). We turn to the remaining factors. B. The most important of these factors is the losing party’s indigency or inability to pay “the full measure” of a costs award against it. Smith, 47 F.3d at 99. Several courts of appeals have held that indigency, or modest means, is a factor that a district court" }, { "docid": "7869027", "title": "", "text": "being permitted to sue initially without paying costs did not insulate the prisoner from a later imposition of costs under 28 U.S.C. § 1915: The plaintiff’s indigency does not prevent the taxation of costs against him. The statute that permits an indigent party to proceed in forma pauperis merely provides that such a person may commence a suit “without prepayment of fees and costs.” 28 U.S.C. § 1915(a) (emphasis added). The statute clearly provides for awarding “costs at the conclusion of the suit or action as in other cases.” 28 U.S.C. § 1915(e). Adopting this reading of § 1915, several courts of appeals have approved the taxation of costs against indigent civil rights plaintiffs. See Flint v. Haynes, 651 F.2d 970, 972-73 (4th Cir.1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982); Harris v. Forsyth, 742 F.2d 1277, 1278 (11th Cir.1984); Lay v. Anderson, 837 F.2d 231, 232-33 (5th Cir.1988). However, when a party claims indigency, this court requires a determination of his or her capacity to pay the costs assessed. 873 F.2d at 120. Flint v. Haynes, 651 F.2d 970 (4th Cir.1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982), involved a similar situation; there the Fourth Circuit permitted the district court to assess costs under § 1915 against in forma pauperis prisoner plaintiffs who had filed 42 U.S.C. § 1983 actions against prison officials. The use of the word “prepayment” in subsection (a) indicates that Congress did not intend to waive forever the payment of costs, but rather it intended to allow qualified litigants to proceed without having to advance the fees and costs associated with litigation. By permitting the court to enter judgment for costs “as in other cases,” subsection (e) evinces a congressional intent that litigants may eventually be liable for costs. It is clear that § 1915 contemplates the postponement of fees and costs for litigants who are granted in forma pauperis status. Thus, we find a district court is empowered to award costs even when it has previously granted a litigant the benefits of § 1915(a)." }, { "docid": "23291178", "title": "", "text": "the amount to be allowed as costs, its enactment controls.”). The Supreme Court specifically rejected dicta in Farmer v. Arabian American Oil Co., 379 U.S. 227, 235, 85 S.Ct. 411, 416, 13 L.Ed.2d 248 (1964), as a basis for reading Rule 54(d)’s discretionary language as authority for taxing as costs expenses not specifically allowed by statute. Crawford, 107 S.Ct. at 2498. The case cited by the State to buttress its expansive reading of Rule 54(d) in this case relied upon the same rejected Farmer dicta, and thus provides no support. See Marks v. Calendine, 80 F.R.D. 24, 31 (N.D.W.Va.1978), aff'd sub nom. Flint v. Haynes, 651 F.2d 970, 973 (4th Cir.1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982). No provision in § 1920 permits courts to tax as costs against a losing party the custodian’s expenses incurred in complying with a prisoner’s writ of habeas corpus ad testificandum. The State argues that 28 U.S.C. § 1821(c)(4) contains a direct authorization for so treating the expenses incurred in transporting Sales. That section provides: All normal travel expenses within and outside the judicial district shall be taxable as costs pursuant to section 1920 of this title. An examination of § 1821 in its entirety shows clearly that it provides for the payment of certain fees and allowances to witnesses, not to parties. The fees and allow- anees pertain to travel and subsistence expenses incurred by witnesses. Section 1821 does not authorize a district court to tax as costs against a prisoner-litigant the expense of transporting that person from prison to court. C. Sales does not contend that deposition expenses may not be taxed as costs. As the court noted in West Wind Africa Line, Ltd. v. Corpus Christi Marine Services Co., 834 F.2d 1232, 1237-38 (5th Cir. 1988), subsections (2) and (4) of § 1920 have been interpreted to authorize taxing as costs the expenses of taking, transcribing and reproducing depositions. Ordinarily, the costs of taking and transcribing depositions reasonably necessary for the litigation are allowed to the prevailing party. Necessity is determined as of the time" }, { "docid": "23573933", "title": "", "text": "or, if qualified, whether they would consent to so act, or appointed any expert witnesses. Had the district court appointed any expert witnesses pursuant to Fed.R.Evid. 706 and then ordered the United States as a party to pay some amount as advance compensation, subject later to taxation as costs, and the United States refused to do so, I would agree that such refusal could be the basis for an appropriate sanction, perhaps dismissal of the complaint. Id. However, that is not the situation presented here. Accordingly, I would not reach the question of the district court’s authority to or der the expenditure of government funds under either Fed.R.Evid. 614(a) or 706(b). . The estimated total cost for the per diem, attendance fee and travel expenses for the Yellow Thunder Camp witnesses was in excess of $5,000. . See, e.g., Flint v. Haynes, 651 F.2d 970, 972-73 (4th Cir.1981) (district court may award costs against litigant proceeding in forma pauperis; prisoner civil rights action), cert, denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982); Cagle v. Cox, 87 F.R.D. 467, 468, 472 (E.D.Va. 1980) (prisoner civil rights action; denied motion for government funds for expert witnesses; granted motion for retention of expert witnesses and taxation of fees and expenses as costs in the event that plaintiffs prevailed); Moss v. ITT Continental Baking Co., 83 F.R.D. 624, 625-27 (E.D. Va.1979) (no reimbursement of indigent civil plaintiffs counsel's litigation expenses; notes that witness disbursements may be taxed as costs); Maldonado v. Parasole, 66 F.R.D. 388, 392 (E.D.N.Y.1975) (taxing costs against nonpre-vailing party; both parties were indigent)." }, { "docid": "22458500", "title": "", "text": "may consider in awarding costs. See, e.g., Cherry v. Champion Int’l Corp., 186 F.3d 442, 447 (4th Cir.1999) (evaluating whether a non-indigent losing plaintiff had the “effective ability to satisfy[the defendant’s] bill of costs” or was “of such modest means that it would be unjust or inequitable to enforce Rule 54(d)(1) against her”); Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 945 (7th Cir.1997) (“[T]he losing party’s inability to pay will suffice to justify denying costs.”). Other courts that have adopted this approach also caution that a losing party’s indigency or an inability to pay costs does not automatically mean that a costs award levied against that party is inequitable. See, e.g., Weaver v. Toombs, 948 F.2d 1004, 1008 (6th Cir.1991) (holding that indigency may be a shield to imposition of costs, but that it is not an absolute shield). This case-by-case approach to the “indigency” factor has also been expressly or implicitly endorsed by noted commentators on the subject. See, e.g., 10 Moore’s, supra, §§ 54.101[l][b], at 54-153, 54.104[l][a]-[c], at 54-198 to 54-201; 10 Wright et al., supra, § 2673, at 305-09. We note too that we have suggested the same. In Smith v. Southeastern Pennsylvania Transportation Authority, 47 F.3d 97, 100 (3d Cir.1995) (per curiam), we held that the “disparity in the parties’ financial resources seems to us to be irrelevant for purposes of Rule 54(d),” but we also stated that [i]f the losing party cannot afford to payfcosts], that party is not automatical ly exempted from the taxation of costs. On the contrary, 28 U.S.C. § 1915(e) and cases decided thereunder make clear that costs may be taxed against a party who is permitted to proceed in forma pauperis. See, e.g., Washington v. Patlis, 916 F.2d 1036, 1039 (5th Cir.1990); Harris v. Forsyth, 742 F.2d 1277, 1278 (11th Cir.1984); Flint v. Haynes, 651 F.2d 970, 973 (4th Cir.1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982). While these cases recognize that a district court may consider a losing party’s indigency in applying Rule 54(d), the losing party in this case does" }, { "docid": "22458499", "title": "", "text": "of the issues they raised; (3) the relative disparity of wealth between the parties; and (4) the indigence or inability to pay a costs award by a losing party. While the first of these factors is not implicated in this case, the propriety of a court considering each of the remaining factors is in dispute. The “unclean hands” factor is not in dispute because the Plaintiffs do not assert that the named Defendants engaged in any acts that would implicate this factor. We reaffirm, however, that in an appropriate case, the unclean hands factor is a relevant one for district courts to consider. See Smith v. Southeastern Pa. Transp. Auth., 47 F.3d 97, 99 (3d Cir.1995) (per curiam) (recognizing this factor). We turn to the remaining factors. B. The most important of these factors is the losing party’s indigency or inability to pay “the full measure” of a costs award against it. Smith, 47 F.3d at 99. Several courts of appeals have held that indigency, or modest means, is a factor that a district court may consider in awarding costs. See, e.g., Cherry v. Champion Int’l Corp., 186 F.3d 442, 447 (4th Cir.1999) (evaluating whether a non-indigent losing plaintiff had the “effective ability to satisfy[the defendant’s] bill of costs” or was “of such modest means that it would be unjust or inequitable to enforce Rule 54(d)(1) against her”); Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 945 (7th Cir.1997) (“[T]he losing party’s inability to pay will suffice to justify denying costs.”). Other courts that have adopted this approach also caution that a losing party’s indigency or an inability to pay costs does not automatically mean that a costs award levied against that party is inequitable. See, e.g., Weaver v. Toombs, 948 F.2d 1004, 1008 (6th Cir.1991) (holding that indigency may be a shield to imposition of costs, but that it is not an absolute shield). This case-by-case approach to the “indigency” factor has also been expressly or implicitly endorsed by noted commentators on the subject. See, e.g., 10 Moore’s, supra, §§ 54.101[l][b], at 54-153, 54.104[l][a]-[c], at 54-198 to" }, { "docid": "2165229", "title": "", "text": "unfair to those who must ultimately bear the burden of SEPTA’s costs — its customers and the taxpayers of the jurisdictions that subsidize it, though the public nature of SEPTA is not the basis for our discussion. If the losing party can afford to pay, the disparity in the parties’ financial resources seems to us to be irrelevant for purposes of Rule 54(d). If the losing party cannot afford to pay, that party is not automatically exempted from the taxation of costs. On the contrary, 28 U.S.C. § 1915(e) and cases decided thereunder make clear that costs may be taxed against a party who is permitted to proceed in forma pauperis. See, e.g., Washington v. Pattis, 916 F.2d 1036, 1039 (5th Cir.1990); Harris v. Forsyth, 742 F.2d 1277, 1278 (11th Cir.1984); Flint v. Haynes, 651 F.2d 970, 973 (4th Cir.1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982). While these cases recognize that a district court may consider a losing party’s indigency in applying Rule 54(d), the losing party in this case does not claim to be indigent, and the record does not establish that she is unable to pay the full measure of costs. We therefore hold that neither the disparity between the parties’ financial resources nor Smith’s financial status provided a basis for reducing the costs sought by SEPTA. Moreover, after considering all of the factors cited by the district court and by Smith, we are convinced that the district court did not properly exercise its discretion in reducing the costs taxed in SEPTA’s favor, for none of SEPTA’s conduct in this litigation rendered the original fee award inequitable. We will therefore reverse the order of the district court in part and remand for the entry of a judgment taxing costs in SEPTA’s favor in the amount of $6,928.17. Costs on appeal will also be taxed in favor of SEPTA. . These “costs\" are listed in 28 U.S.C. § 1920. \"They do not include such litigation expenses as attorney's fees and expert witness fees in excess of the standard daily witness fee.” Friedman v." }, { "docid": "22458501", "title": "", "text": "54-201; 10 Wright et al., supra, § 2673, at 305-09. We note too that we have suggested the same. In Smith v. Southeastern Pennsylvania Transportation Authority, 47 F.3d 97, 100 (3d Cir.1995) (per curiam), we held that the “disparity in the parties’ financial resources seems to us to be irrelevant for purposes of Rule 54(d),” but we also stated that [i]f the losing party cannot afford to payfcosts], that party is not automatical ly exempted from the taxation of costs. On the contrary, 28 U.S.C. § 1915(e) and cases decided thereunder make clear that costs may be taxed against a party who is permitted to proceed in forma pauperis. See, e.g., Washington v. Patlis, 916 F.2d 1036, 1039 (5th Cir.1990); Harris v. Forsyth, 742 F.2d 1277, 1278 (11th Cir.1984); Flint v. Haynes, 651 F.2d 970, 973 (4th Cir.1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982). While these cases recognize that a district court may consider a losing party’s indigency in applying Rule 54(d), the losing party in this case does not claim to be indigent, and the record does not establish that she is unable to pay the full measure of costs. Id. The negative pregnant contained in this statement is that a party may be exempted from costs if he is in fact indigent, if he has adduced evidence that he is indigent, and if the district court sees fit to reduce the costs award imposed for reasons of equity. Policy considerations underpinning the American costs rule support the consideration of the “indigency or inability to pay” factor. As Professors Wright, Miller, and Kane have observed, Rule 54(d)(1) is “founded on the egalitarian concept of providing relatively easy access to the courts to all citizens and reducing the threat of liability for litigation expenses as an obstacle to the commencement of a lawsuit or the assertion of a defense that might have some merit.” 10 Wright et al., supra, § 2665, at 202. Persuaded by the authority from other circuits and these policy considerations, we hold that the District Court could have considered this" }, { "docid": "6473368", "title": "", "text": "action as in other proceedings”). In Flint v. Haynes, 651 F.2d 970 (4th Cir.1981), for instance, we held that “a district court is empowered to award costs even when it has previously granted a litigant the benefits” of in forma pauperis status. Id. at 972. We explained: [Wjhen costs are assessed only in extreme or exceptional cases, those persons granted leave to proceed in forma pauperis have virtually nothing to lose and everything’to gain, and the purpose of § 1915 — equal access for the poor and the rich — is distorted. Non-indigents who contemplate litigation are routinely forced to decide whether their claim is worth it. We see no reason to treat indigents differently in this respect. Id. at 973 (internal quotation marks and citations omitted). We find nothing in Rule 54(d) supporting the counter intuitive notion that litigants with “modest means” should be treated more leniently than in-forma pauperis litigants regarding assessments of costs. We also find the district court’s reliance on its third ground, the parties’ comparative economic power, to be error. Such a factor would almost always favor an individual plaintiff such as Cherry over her employer defendant. Moreover, the plain language of Rule 54(d) does not contemplate a court basing awards on a comparison of the parties’ financial strengths. To do so would not only undermine the presumption that Rule 54(d)(1) creates in prevailing parties’ favor, but it would also undermine the foundation of the legal system that justice is administered to all equally, regardless of wealth or status. See Flint, 651 F.2d at 973. For its final ground, the district court refused to award Champion costs because to deny the presumption of Rule 54(d)(1) would serve the public interest by encouraging individuals to pursue Title VII actions. In taking the nature of the underlying litigation into account, the district court again misconstrued the rule. The language of Rule 54(d)(1) does not provide that the presumptive award of costs may be defeated because of the nature of the underlying litigation. On the contrary, it provides that “[ejxcept when express provision therefor is made either in" }, { "docid": "6473367", "title": "", "text": "expenses and to be able to spend all of her 401 (k) money on discretionary items, she wishes to shield herself from' obligations such as court costs by claiming that all her money is jointly held and therefore is not available for the payment of costs. The district court erred in failing to recognize the inequity inherent in this position. Evaluated objectively, Cherry had the effective ability to satisfy Champion’s bill of costs.- We also observe that any ruling exempting an unsuccessful plaintiff with Cherry’s financial resources from satisfying court costs would create a perplexing exception to Rule 54(d), one unavailable to in forma pauperis plaintiffs proceeding under 28 U.S.C. § 1915. While a non-prisoner in forma pauperis plaintiff remains exempt from paying filing fees or providing security for costs, see 28 U.S.C. § 1915(a)(1), the informa pauperis plaintiff nonetheless remains liable for paying the prevailing adversary’s costs, see 28 U.S.C. § 1915(f)(1) (stating that when a party proceeds in forma pauperis, “[jjudgment may be rendered for costs at the conclusion of the suit or action as in other proceedings”). In Flint v. Haynes, 651 F.2d 970 (4th Cir.1981), for instance, we held that “a district court is empowered to award costs even when it has previously granted a litigant the benefits” of in forma pauperis status. Id. at 972. We explained: [Wjhen costs are assessed only in extreme or exceptional cases, those persons granted leave to proceed in forma pauperis have virtually nothing to lose and everything’to gain, and the purpose of § 1915 — equal access for the poor and the rich — is distorted. Non-indigents who contemplate litigation are routinely forced to decide whether their claim is worth it. We see no reason to treat indigents differently in this respect. Id. at 973 (internal quotation marks and citations omitted). We find nothing in Rule 54(d) supporting the counter intuitive notion that litigants with “modest means” should be treated more leniently than in-forma pauperis litigants regarding assessments of costs. We also find the district court’s reliance on its third ground, the parties’ comparative economic power, to be error." }, { "docid": "12066970", "title": "", "text": "pro se plaintiffs, the court must take into account a plaintiffs pro se status when it determines whether the filing was reasonable. Harris v. Heinrich, 919 F.2d 1515, 1516 (11th Cir.1990); Kurkowski v. Volcker, 819 F.2d 201, 204 (8th Cir.1987) (‘We recognize that pro se complaints are read liberally, but they still may be frivolous if filed in the face of previous dismissals involving the exact same parties under the same legal theories.”). It is also clear that a plaintiff proceeding in forma pauperis is not protected from the taxation of costs to which a prevailing defendant is entitled. The First Circuit has explained that IFP status “does not completely immunize an indigent litigant from eventual liability for costs.... Such costs have been taxed upon a finding that the indigent’s action was frivolous or malicious, while other IFP plaintiffs have been held liable for costs even if litigation was undertaken in good faith.” Papas v. Hanlon, 849 F.2d 702, 703-04 (1st Cir.1988); see also Flint v. Haynes, 651 F.2d 970, 974 (4th Cir.1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982) (despite inmates’ contention that costs should be awarded only in exceptional cases where claim is frivolous or otherwise improper, trial court properly assessed costs against three inmates who, after being granted IFP status, had final judgment entered against them and in favor of the defendants); Lay v. Anderson, 837 F.2d 231, 232 (5th Cir.1988), mandamus denied, In re Lay, 493 U.S. 806, 110 S.Ct. 222, 107 L.Ed.2d 175 (1989) (costs may be taxed against IFP prisoner following judgment in favor of defendants, whether plaintiff has made frivolous allegations or not). Hence, a court can properly consider plaintiff’s ability to pay monetary sanctions as one factor in assessing sanctions. It cannot, however, decline to impose any sanction, where a violation has arguably occurred, simply because plaintiff is proceeding pro se. A contrary conclusion would effectively place all unrepresented parties beyond the reach of Rule 11. We remand this case to the district court so that it may properly address appellant’s Rule 11 motion by determining if" }, { "docid": "2165228", "title": "", "text": "1, 11 (7th Cir.1949), cert. denied, 338 U.S. 948, 70 S.Ct. 486, 94 L.Ed. 584 (1950)). The Chicago Sugar case provides the following examples of a “defection” that would warrant denying costs to a prevailing party: “calling unnecessary witnesses, bringing in unnecessary issues or otherwise encumbering the record, or ... delaying in raising objection fatal to the plaintiffs case....” Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897, 926 (3d Cir.1985). Here, the district court reduced the costs taxed in favor of SEPTA based in large part on the disparity in the parties’ financial resources, but we hold that this decision exceeded the district court’s equitable discretion under Rule 54(d). We reject the general proposition that it is “inequitable” to tax costs in favor of a prevailing party with substantially greater wealth than the losing party. Acceptance of this general proposition would mean that large institutions such as SEPTA could be denied costs in most eases even when their unsuccessful adversaries could well afford to pay for them. In this instance this would be unfair to those who must ultimately bear the burden of SEPTA’s costs — its customers and the taxpayers of the jurisdictions that subsidize it, though the public nature of SEPTA is not the basis for our discussion. If the losing party can afford to pay, the disparity in the parties’ financial resources seems to us to be irrelevant for purposes of Rule 54(d). If the losing party cannot afford to pay, that party is not automatically exempted from the taxation of costs. On the contrary, 28 U.S.C. § 1915(e) and cases decided thereunder make clear that costs may be taxed against a party who is permitted to proceed in forma pauperis. See, e.g., Washington v. Pattis, 916 F.2d 1036, 1039 (5th Cir.1990); Harris v. Forsyth, 742 F.2d 1277, 1278 (11th Cir.1984); Flint v. Haynes, 651 F.2d 970, 973 (4th Cir.1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982). While these cases recognize that a district court may consider a losing party’s indigency in applying Rule 54(d), the losing party in this" }, { "docid": "23291180", "title": "", "text": "of taking, and the fact that a deposition is not actually used at trial is not controlling. LaVay Corp. v. Dominion Federal S. & L. Ass’n, 830 F.2d 522, 528 (4th Cir.1987), cert. denied, - U.S. -, 108 S.Ct. 1027, 98 L.Ed.2d 991 (1988). An allowance of deposition costs is reviewed for an abuse of discretion. Furr v. AT & T Technologies, Inc., 824 F.2d 1537, 1550 (10th Cir.1987). Although the plaintiff contests the reasonableness of the amount claimed as deposition expenses, the primary disagreement on the deposition issue concerns the effect of the plaintiff’s indigency. The plaintiff’s indigency does not prevent the taxation of costs against him. The statute that permits an indigent party to proceed in forma pauperis merely provides that such a person may commence a suit “without prepayment of fees and costs.” 28 U.S.C. § 1915(a) (emphasis added). The statute clearly provides for awarding “costs at the conclusion of the suit or action as in other cases.” 28 U.S.C. § 1915(e). Adopting this reading of § 1915, several courts of appeals have approved the taxation of costs against indigent civil rights plaintiffs. See Flint v. Haynes, 651 F.2d 970, 972-73 (4th Cir.1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982); Harris v. Forsyth, 742 F.2d 1277, 1278 (11th Cir.1984); Lay v. Anderson, 837 F.2d 231, 232-33 (5th Cir.1988). However, when a party claims indigency, this court requires a determination of his or her capacity to pay the costs assessed. In re Ruben, 825 F.2d 977, 987 (6th Cir.1987), cert. denied sub nom. Swan v. Ruben, - U.S. -, 108 S.Ct. 1108, 99 L.Ed.2d 269 (1988); Haynie v. Ross Gear Div. of TRW, Inc., 799 F.2d 237, 243 (6th Cir.1986), vacated 482 U.S. 901, 107 S.Ct. 2475, 96 L.Ed.2d 368 (1987). The judgment of the district court taxing as costs the expenses of transporting Sales to court is reversed. That portion of the judgment taxing deposition expenses as costs is vacated and remanded for a determination of the reasonableness of the amount claimed and of the ability of Sales to pay. IV. A." }, { "docid": "22458502", "title": "", "text": "not claim to be indigent, and the record does not establish that she is unable to pay the full measure of costs. Id. The negative pregnant contained in this statement is that a party may be exempted from costs if he is in fact indigent, if he has adduced evidence that he is indigent, and if the district court sees fit to reduce the costs award imposed for reasons of equity. Policy considerations underpinning the American costs rule support the consideration of the “indigency or inability to pay” factor. As Professors Wright, Miller, and Kane have observed, Rule 54(d)(1) is “founded on the egalitarian concept of providing relatively easy access to the courts to all citizens and reducing the threat of liability for litigation expenses as an obstacle to the commencement of a lawsuit or the assertion of a defense that might have some merit.” 10 Wright et al., supra, § 2665, at 202. Persuaded by the authority from other circuits and these policy considerations, we hold that the District Court could have considered this factor, given the affidavits that the Plaintiffs presented regarding their indigency. Therefore, the District Court’s order imposing costs must be set aside. Stating our position more precisely, we hold that if a losing party is indigent or unable to pay the full measure of costs, a district court may, but need not automatically, exempt the losing party from paying costs. Such an approach is somewhat at odds with the traditional rule at law that the prevailing party was automatically entitled to its costs, but it is consistent with the rule at equity that the district court exercise its discretion to insure that the award be equitable. See supra Section II.A. Allowing for the indigency factor in certain cases is also in keeping with the American tradition of not providing total reimbursement. See id. As was noted above, see id., the types of costs recoverable under Rule 54(d)(1) are quite circumscribed. These costs “do not include such litigation expenses as attorney’s fees and expert witness fees in excess of the standard daily witness fee,” Friedman v." }, { "docid": "7869026", "title": "", "text": "direct resort to plaintiffs’ prison accounts. We have appointed counsel for plaintiffs to determine the propriety of the assessment and direct collection of such costs without further court intervention. Counsel for plaintiffs contends that application of the rule and the statute results in constitutional violations of plaintiffs’ rights. The first constitutional claim is that such application under the circumstances “chills the rights of appellants and pauper prisoners similarly situated to enjoy the first amendment right to petition the courts.” Next, plaintiffs contend that assessment and collection of such costs against in for-ma pauperis plaintiffs deny them equal protection and offends their due process rights under the fifth amendment. In addressing these constitutional claims, we first observe that there are few cases that deal with the constitutionality of assessing costs under Fed.R.App.P. 39(a). I. ACCESS TO COURTS A. First Amendment We recently reviewed the question of assessment of costs by the district court against prisoners who had proceeded in forma pauperis in Sales v. Marshall, 873 F.2d 115 (6th Cir.1989). Judge Lively observed in Sales that being permitted to sue initially without paying costs did not insulate the prisoner from a later imposition of costs under 28 U.S.C. § 1915: The plaintiff’s indigency does not prevent the taxation of costs against him. The statute that permits an indigent party to proceed in forma pauperis merely provides that such a person may commence a suit “without prepayment of fees and costs.” 28 U.S.C. § 1915(a) (emphasis added). The statute clearly provides for awarding “costs at the conclusion of the suit or action as in other cases.” 28 U.S.C. § 1915(e). Adopting this reading of § 1915, several courts of appeals have approved the taxation of costs against indigent civil rights plaintiffs. See Flint v. Haynes, 651 F.2d 970, 972-73 (4th Cir.1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982); Harris v. Forsyth, 742 F.2d 1277, 1278 (11th Cir.1984); Lay v. Anderson, 837 F.2d 231, 232-33 (5th Cir.1988). However, when a party claims indigency, this court requires a determination of his or her capacity to pay the costs assessed." }, { "docid": "22458504", "title": "", "text": "Ganassi, 853 F.2d 207, 209 (3d Cir.1988), and as a result, while a prevailing party is awarded its Rule 54(d)(1) costs, those costs often fall well short of the party’s actual litigation expenses, see 10 Wright et al., supra, § 2666, at 202-04; see also 10 Moore’s, supra, § 54.103, at 54-174 to 54-197. The plaintiffs have introduced evidence that they are indigent or unable to pay the large costs award imposed in this case. See supra Part IV. We will therefore reverse the order of the District Court on this point. On remand, the District Court should consider this evidence and the “indigency or inability to pay” factor. C. The next disputed factor is the good faith of the losing party (here the Plaintiffs) and the closeness and difficulty of the issues that they raised. We have no doubt that the Plaintiffs acted in good faith, and our prior opinions in this matter reflect the seriousness, closeness, and difficulty of the many issues that they raised. This was a classic close case, brought in good faith by the Plaintiffs. This court, in fact, expressed the sentiment that some may have been surprised by the fact that the Plaintiffs had lost at trial. See In re Paoli R.R. Yard PCB Litig., 113 F.3d 444, 464 (3d Cir.1997). However, despite the fervent advocacy of the Plaintiffs’ counsel, we do not consider these factors, in and of themselves, to be appropriate criteria in determining whether a costs award is equitable. Amicus argues for the applicability of the “good faith” and “closeness or complexity” factors based on a complicated reading of our case law and this court’s statements, which are quoted in block form in footnote 4 above, in Smith v. Southeastern Pennsylvania Transportation Authority, 47 F.3d 97 (3d Cir.1995) (per curiam). In Smith, we referenced our previous opinion in ADM Corp. v. Speedmaster Packaging Corp., 525 F.2d 662 (3d Cir.1975), which quoted the Seventh Circuit Court of Appeals’s opinion in Chicago Sugar Co. v. American Sugar Refining Co., 176 F.2d 1, 11 (7th Cir.1949), for the proposition that a district court may" }, { "docid": "23291177", "title": "", "text": "See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987). After reviewing the history of congressional enactments related to costs, the Court declared: “Title 28 U.S.C. § 1920 ... embodies Congress’ considered choice as to the kinds of expenses that a federal court may tax as costs against the losing party.” 107 S.Ct. at 2496. The Court held that only the witness fees and allowances authorized by § 1821, as defined in § 1920, are taxable as costs. The Court rejected the argument that “the discretion granted by Rule 54(d) is a separate source of power to tax as costs expenses not enumerated in § 1920.” Id. at 2497. “[T]he better view,” the Court stated, “is that § 1920 defines the term ‘costs’ as used in Rule 54(d).” Id. In reaching this conclusion the Court relied on its earlier decision in Henkel v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 284 U.S. 444, 446, 52 S.Ct. 223, 224, 76 L.Ed. 386 (1932) (“[W]hen Congress has prescribed the amount to be allowed as costs, its enactment controls.”). The Supreme Court specifically rejected dicta in Farmer v. Arabian American Oil Co., 379 U.S. 227, 235, 85 S.Ct. 411, 416, 13 L.Ed.2d 248 (1964), as a basis for reading Rule 54(d)’s discretionary language as authority for taxing as costs expenses not specifically allowed by statute. Crawford, 107 S.Ct. at 2498. The case cited by the State to buttress its expansive reading of Rule 54(d) in this case relied upon the same rejected Farmer dicta, and thus provides no support. See Marks v. Calendine, 80 F.R.D. 24, 31 (N.D.W.Va.1978), aff'd sub nom. Flint v. Haynes, 651 F.2d 970, 973 (4th Cir.1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982). No provision in § 1920 permits courts to tax as costs against a losing party the custodian’s expenses incurred in complying with a prisoner’s writ of habeas corpus ad testificandum. The State argues that 28 U.S.C. § 1821(c)(4) contains a direct authorization for so treating the expenses incurred in transporting Sales. That" }, { "docid": "12066969", "title": "", "text": "requisite finding of whether a violation had in fact been committed. Neither the magistrate judge nor the district judge ever addressed appellant’s contention that Warren’s filing was frivolous, and that Warren knew at the time he filed it that he was making a false representation. We reverse and remand for a determination of whether Warren violated Rule 11. In addition, the district court’s holding implies that sanctions are inappropriate solely because Warren was a pro se plaintiff. We first note that the rule explicitly applies to parties not represented by attorneys. The district court is therefore not at liberty to exempt automatically such persons from the rule’s requirements. Secondly, Rule ll’s express goal is deterrence: IFP litigants, proceeding at the expense of taxpayers, need to be deterred from filing frivolous lawsuits as much as litigants who can afford, to pay their own fees and costs. Finally, past courts have applied the rule to pro se plaintiffs in assessing both the reasonableness of the behavior and the appropriate measure of sanctions: Although Rule 11 applies to pro se plaintiffs, the court must take into account a plaintiffs pro se status when it determines whether the filing was reasonable. Harris v. Heinrich, 919 F.2d 1515, 1516 (11th Cir.1990); Kurkowski v. Volcker, 819 F.2d 201, 204 (8th Cir.1987) (‘We recognize that pro se complaints are read liberally, but they still may be frivolous if filed in the face of previous dismissals involving the exact same parties under the same legal theories.”). It is also clear that a plaintiff proceeding in forma pauperis is not protected from the taxation of costs to which a prevailing defendant is entitled. The First Circuit has explained that IFP status “does not completely immunize an indigent litigant from eventual liability for costs.... Such costs have been taxed upon a finding that the indigent’s action was frivolous or malicious, while other IFP plaintiffs have been held liable for costs even if litigation was undertaken in good faith.” Papas v. Hanlon, 849 F.2d 702, 703-04 (1st Cir.1988); see also Flint v. Haynes, 651 F.2d 970, 974 (4th Cir.1981), cert. denied," } ]

[ { "docid": "22681950", "title": "", "text": "discrimination and applied the McDonnell Douglas/Burdine evidentiary framework in analyzing the factual and legal merits of Plaintiffs claims. 2. Plaintiff Failed to Establish a Prima Facie Case of Race Or Age Discrimination. It is well-established that the burden is on an employment discrimination plaintiff to establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1972); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). As the District Court explained, under McDonnell Douglas and Burdine, Plaintiff can establish a prima facie case of discrimination by showing that (1) she was a member of a protected class; (2) she was discharged; (3) she was qualified for the position; and (4) she was replaced by a person outside the class. The District Court held that Plaintiff satisfied the first three McDonnell Douglas/Burdine elements but failed to satisfy the fourth element — i.e., she failed to show that she was replaced by a white or younger person. Therefore, the District Court held that Plaintiff failed to establish a prima facie case of either race or age discrimination. Although the District Judge found no prima facie case had been established by Plaintiff because of the lack of the fourth “replaced-by-a-‘non-protected’-person” element of the McDonnell Douglas/Burdine criteria, a plaintiff can also make out a prima facie case by showing, in addition to the first three elements, that “a comparable non-protected person was treated better”. As the Sixth Circuit has frequently phrased the requirements of a prima facie claim of disparate treatment using such a “comparable non-protected person was treated better” element as one of the requisites, the plaintiff must produce evidence which at a minimum establishes (1) that he was a member of a protected class and (2) that for the same or similar conduct he was treated differently than similarly-situated non-minority employees. See e.g., Davis v. Monsanto Chemical Co., 858 F.2d 345 (6th Cir.1988), cert. denied, 490 U.S. 1110, 109 S.Ct. 3166, 104 L.Ed.2d 1028 (1989); Long v. Ford Motor Co.," } ]

[ { "docid": "19960596", "title": "", "text": "in the context of summary judgment merely by alleging [her] condition to be so”) Because Cas-key neither .received continuing treatment by a health care provider nor suffered a chronic condition, her various afflictions do not amount to a serious health condition, and therefore she had no right to FML on May 21, 22, and 27. B. Discrimination Based on Sex Caskey next claims that Hill’s improperly discriminated against her because of her sex by placing her, and not male employees, on the DML stage of the disciplinary process after the defective product incident in March 2003. Under Title VII of the Civil Rights Act of 1964, it is unlawful for employers “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex....” 42 U.S.C. § 2000e-2(a)(1). Caskey presented no direct evidence of discrimination,-so we analyze her indirect proof using the familiar burden-shifting method under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Ordinarily under McDonnell Douglas, a plaintiff must make a prima facie case of gender discrimination by showing: (1) she is a member of the protected class, (2) she met her employer’s legitimate expectations, (3) she suffered an adverse employment action, and (4) her employer treated similarly situated male employees more favorably. Peirick v. Indiana University-Purdue Univ. Indianapolis Athletics Dept., 510 F.3d 681, 687 (7th Cir.2007). As the district court correctly pointed out, in claims of discriminatory discipline such as this one, “the second and fourth prongs of McDonnell Douglas merge.” Lucas v. Chicago Transit Auth., 367 F.3d 714, 728 (7th Cir.2004). Accordingly, the analysis of the employer’s expectations falls by the wayside, and a “plaintiff must establish that [s]he received dissimilar — and more harsh — punishment than that received by a similarly situated employee who was outside the protected class.” Id. A similarly situated employee need not be “identical,” but the plaintiff must show that the other employee “dealt with the same supervisor, [was] subject to the same standards, and had engaged in similar conduct without such differentiating" }, { "docid": "4099176", "title": "", "text": "employment. Under the CBA, Bass was entitled to a certain amount of leave. She exceeded that allowance by a significant margin. She was warned, meetings were held, she did not return to work, and she was fired. Three men were also fired for the same reason between 2008 and 2011. No trier of fact could find discrimination on that record. Bass also relies on the indirect method, using the familiar McDonnell Douglas test. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this approach, Bass needed first to establish a prima facie case of discrimination. To do so she had to show (1) that she was a member of a protected class; (2) that she was performing her job satisfactorily; (3) that she suffered an adverse employment action; and (4) that the employer treated similarly situated employees outside of the protected class more favorably. See Lucas v. Chi. Transit Autk, 367 F.3d 714, 728 (7th Cir.2004). Elements (1) and (3) are here (and often are) easily satisfied — Bass is a woman and she was fired. But Bass can show neither that she was performing her job satisfactorily nor that the District treated males more favorably. Bass repeatedly missed work. She received written reprimands for her unexcused absences, in accordance with her CBA. Although she eventually returned to work, it was not for long. She failed to report to work again on January 3, 2011, at a time when she had exhausted all available leave. Her violations of the District’s attendance guidelines demonstrate that she was not meeting the District’s legitimate expectations. See Contreras v. Suncast Corp., 237 F.3d 756, 761 (7th Cir. 2001) (“[Plaintiff] violated the company’s work attendance guidelines on no less than eight occasions.... All these facts show that [plaintiff] was not meeting the legitimate expectations of [his employer].”). Apart from an unsupported assertion in her brief that “similarly situated males were treated differently,” she offers nothing on element four. Without at least a name to test, the district court had no choice but to grant summary judgment for the" }, { "docid": "23229443", "title": "", "text": "L.Ed.2d 407 (1993). A Title VII plaintiff can satisfy her burden of proof by two avenues: (1) she may present direct evidence of discriminatory intent or, because of the difficulty in directly proving discrimination, (2) she may use the indirect, burden-shifting procedure set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Pasqua v. Metropolitan Life Ins. Co., 101 F.3d 514, 516 (7th Cir.1996). Gonzalez relies upon the McDonnell Douglas avenue. Under the McDonnell Douglas burden-shifting approach, Gonzalez must initially establish a prima facie case of racial and/or ethnic discrimination by a preponderance of the evidence. Pasqua, 101 F.3d at 516. To establish a prima facie case of racial discrimination requires Gonzalez to show she was (1) in a protected class; (2) performing her job satisfactorily; (3) the subject of a materially adverse employment action; and (4) others outside of the protected class were treated more favorably. Young v. Will County Dept. of Public Aid, 882 F.2d 290, 293 (7th Cir.1989). Once Gonzalez establishes a prima facie case, the burden shifts to Ingersoll to “articulate some legitimate, nondiscriminatory reason” for its action. Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1281 (7th Cir.1977), citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If Ingersoll meets its burden of establishing a legitimate, nondiscriminatory reason for the layoff, Gonzalez then has an opportunity to show that the articulated reason was in fact pretext. See McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. The ultimate burden of proof remains with Gonzalez at all times. See, e.g., Kirk v. Federal Property Management Corp., 22 F.3d 135, 138 (7th Cir.1994). Ingersoll claims it is entitled to summary judgment on Gonzalez’s Title VII claim because Gonzalez failed to provide any evidence that others outside the protected class were treated more favorably than Gonzalez. The district court agreed, finding that Gonzalez failed to establish a prima facie case of discrimination because she could not point to a similarly situated employee outside the protected class who had received more favorable treatment. Despite finding the allegations were not" }, { "docid": "5357839", "title": "", "text": "material facts is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. B. Disparate Treatment Title VII prohibits employers from discriminating against employees on the basis of sex or gender. 42 U.S.C. § 2000e-2(a)(l). Claims of discrimination under Title VII for disparate treatment can be proven either through direct or indirect evidence. O’Regan v. Arbitration Forums, Inc., 246 F.3d 975, 983 (7th Cir.2001). Given that Dr. Farrell does not provide any direct evidence of discrimination on the basis of gender, she must proceed under the McDonnell Douglas indirect burden-shifting method. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); O’Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir.2004). Under the McDonnell Douglas scheme, the plaintiff bears the initial burden of establishing a prima facie case. Id. at 802, 93 S.Ct. 1817. To state a prima facie case of “disparate treatment” gender discrimination under Title VII, a female plaintiff must show that she: (1) is a member of a protected class, (2) is performing her job satisfactorily, (3) suffered an adverse employment action, and (4) was treated less favorably than at least one similarly-situated male colleague. Lim v. Trus. of Ind. Univ., 297 F.3d 575, 580 (7th Cir.2002); Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1012 (7th Cir.2000). Once the plaintiff has established a prima facie case, the burden of production shifts to the defendant to provide a legitimate, nondiscriminatory reason for the decision. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Paluck, 221 F.3d at 1009. Once the defendant satisfies its burden, the burden shifts back to the plaintiff to show that the defendant’s explanation was pretextual. Paluck, 221 F.3d at 1009. Pretext requires more than showing that the decision was “mistaken, ill considered or foolish, [and] so long as [the employer] honestly believed those reasons, pretext has not been shown.” Jordan v. Summers, 205 F.3d 337, 343 (7th Cir.2000). Pretext “means a dishonest explanation, a lie rather than an oddity or an error.” Kulumani v. Blue Cross Blue" }, { "docid": "159023", "title": "", "text": "does not strike us as suspicious. When direct evidence is lacking, a plaintiff may proceed under the indirect, burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Pasqua v. Metro. Life Ins. Co., 101 F.3d 514, 516 (7th Cir.1996). Under McDonnell Douglas a plaintiff must initially establish a prima facie case of unlawful discrimination by a preponderance of the evidence. If she does this, the burden shifts to the defendant to proffer a legitimate, nondiscriminatory reason for its adverse action against the plaintiff. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Such a reason, if unrebutted, defeats the plaintiffs claim. However, if the plaintiff can prove by a preponderance of the evidence that the employer’s proffered explanation is a mere pretext for actual discrimination, id. at 808, 93 S.Ct. 1817, then the employer is liable for the plaintiffs injuries. To establish a prima facie case under McDonnell Douglas, the plaintiff must show: (1) that she is a member of a protected class; (2) that she was performing her job satisfactorily; (3) that she was the object of a materially adverse employment action; and (4) that similarly-situated employees outside the protected class were treated more favorably. Id. at 802, 93 S.Ct. 1817; Gordon, 246 F.3d at 885-86. Spherion conceded the first three elements; the district court held that Sartor failed to show that any similarly-situated employee outside the protected classes was treated more favorably than she. On appeal Sartor argues for the first time that because the BDDs who were retained in Spherion’s restructuring absorbed some of her former job duties and are not in the protected class, she is not required to show that similarly-situated employees were treated more favorably, citing Bellaver v. Quanex Corp., 200 F.3d 485, 495 (7th Cir.2000). “We have long refused to consider arguments that were not presented to the district court in response to summary judgment motions.” Arendt v. Vetta Sports, Inc., 99 F.3d 231, 237 (7th Cir.1996) (quoting Cooper v. Lane, 969 F.2d 368, 371 (7th Cir.1992)). This court" }, { "docid": "16761128", "title": "", "text": "VII makes it an unlawful employment practice for an employer “(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex....” 42 U.S.C. § 2000e-2(a)(1). As Peirick seeks to prove her case by the indirect method of proof, we analyze her claim under the burden-shifting approach announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, a plaintiff must first make out a prima facie case of gender discrimination. Peirick may do so by showing: (1) she is a member of the protected class, (2) she met her employer’s legitimate expectations, (3) she suffered an adverse employment action, and (4) her employer treated similarly situated male employees more favorably. Barricks v. Eli Lilly & Co., 481 F.3d 556, 559 (7th Cir.2007) (citing Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696 (7th Cir.2006)). At that point, the employer must offer a legitimate nondiscriminatory reason for the adverse employment action, which the employee may rebut by showing that the reason is a mere pretext for discrimination. Id. The only issues on appeal are whether Peirick satisfied the second and fourth elements of the prima facie case, and whether she rebutted the defendants’ proffered nondiscriminatory reason for the adverse employment action. Where, as here, an employee claims that she “performed satisfactorily and the employer is lying about the business expectations required for the position, the second prong and the pretext question seemingly merge because the issue is the same— whether the employer is lying.” Hague v. Thompson Distrib. Co., 436 F.3d 816, 823 (7th Cir.2006); see Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1179 (7th Cir.1997) (“The defendant’s expectations are not legitimate if they are phony; so if they are argued to be phony, the issue of legitimate expectations and the issue of pretext seem to merge”)- Therefore, we begin with the fourth prong of the prima facie case. 1. Similarly Situated Individuals Were Treated" }, { "docid": "4389513", "title": "", "text": "she made only because she lacked legal training. II. Discussion A. Standard of Review We review de novo a grant of summary-judgment, applying the same standard as the district court and viewing the record in the light most favorable to the nonmoving party. Barrera v. Con Agra, Inc., 244 F.3d 663, 666 (8th Cir.2001). Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 66(c). B. Racial Discrimination Gilmore alleges that the district court erred by granting summary judgment to AT & T on her claim of racial discrimination. To establish a prima facie case of racial discrimination, a plaintiff must show that: (1) she was a member of a protected group; (2) she was meeting the legitimate expectations of her employer; (3) she suffered an adverse employment action; and (4) similarly situated employees who are not members of the protected group were treated differently. See Clark v. Runyon, 218 F.3d 915, 918 (8th Cir.2000). Specifically, under the final prong of this test, Gilmore bears the burden to demonstrate by a preponderance of the evidence that there were individuals similarly situated in all respects to her who were treated differently. Id. The individuals used as comparators “must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” Id. Once this prima facie case is established, the burden shifts to the employer to provide a legitimate reason for the adverse employment action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Then, the burden shifts back to the employee to demonstrate that the reason articulated by the employer was a pretext. See id. at 804, 93 S.Ct. 1817. Our review of the record supports the district court’s conclusion that Gilmore failed to establish a prima facie case of racial discrimination. Specifically, Gilmore has not demonstrated that the eight individuals that she identified as comparators are similarly situated to her. Three of" }, { "docid": "13644790", "title": "", "text": "a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). We review the record and the inferences drawn in the light most favorable to the party opposing the motion. Cameron v. Frances Slocum Bank & Trust Co., 824 F.2d 570, 573 (7th Cir.1987). Our review of the district court’s decision granting summary judgment is de novo. Puckett v. Soo Line R.R. Co., 897 F.2d 1423, 1425 (7th Cir.1990). A. Sex Discrimination Samuelson contends she was discharged because of her gender, in violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex ...” 42 U.S.C. § 2000(e)-(2). The United States Supreme Court has delineated a burden-shifting formula for determining discrimination claims under Title VII. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Under this formula, the plaintiff bears the initial burden of establishing by a preponderance of the evidence a prima facie case of discrimination. Id. Samuelson can establish a prima facie case of discrimination by showing: “(1) she was a member of a protected class; (2) she was satisfactorily performing the duties of her position; (3) she was discharged; and ... (4) others not in the protected class were treated more favorably.” Jones v. Jones Bros. Constr. Corp., 879 F.2d 295, 299 (7th Cir.1989). Once a plaintiff meets that burden, the burden shifts to the defendant “to articulate a legitimate, non-discriminatory reason for its action.” Id. Finally, if the defendant meets this burden, the presumption of discrimination is dissolved, and the burden shifts back to the plaintiff to prove the defendant’s actions were a pretext for discrimination. Id. This may be accomplished “by showing either that a discriminatory reason more likely than not motivated the employer or that the employer’s proffered explanation is incredible.” Oxman v. WLS-TV, 846 F.2d 448, 453 (7th Cir.1988). The plaintiff may show the defendant’s proffered reasons are incredible by" }, { "docid": "14844536", "title": "", "text": "sue letter from the EEOC, Nicholson filed an action against Cape Air, alleging that she had been demoted from the ATR 42 program on account of her sex in violation of Title VII, 42 U.S.C. § 2000e-2. The district court granted Cape Air’s motion for summary judgment, finding that Nicholson could not establish a prima facie case because her lack of communication and cooperation skills made her unqualified to fly ATR 42s, and because there were no similarly situated employees who were treated more favorably. The district court also found that, even if Nicholson could establish a prima facie case, summary judgment for Cape Air was appropriate because she had not presented evidence to rebut Cape Air’s legitimate, non-discriminatory explanation for its actions, namely, that she was disciplined on account of her CRM deficiencies. Nicholson filed a timely notice of appeal. Discussion To prove her claim of discrimination, Nicholson relies upon the three-step burden-shifting scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). We analyze each step in turn. I. Nicholson’s Prima Facie Case “Under McDonnell Douglas, a plaintiff alleging disparate treatment under Title VII must first establish a prima facie case of discrimination. Specifically, the plaintiff must show that (1) he belongs to a protected class; (2) he was qualified for the position; (3) he was subject to an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably.” Chuang v. Univ. of Cal. Davis Bd. of Trustees, 225 F.3d 1115, 1123(9th Cir.2000) (citation omitted). Cape Air does not dispute that Nicholson is a member of a protected class (women) and that Nicholson suffered an adverse employment action (removal from eligibility to fly ATR 42s). Accordingly, we need determine only whether Nicholas was qualified for the position, and whether similarly situated individuals were treated more favorably. A. Nicholson Was Qualified Cape Air alleges, and the district court held, that Nicholson cannot establish a prima facie case under McDonnell Douglas because her CRM deficiencies rendered her unqualified to fly ATR 42s. Nicholson claims that her" }, { "docid": "22464637", "title": "", "text": "the remark was made almost four years prior to Ms. Oest’s termination and two years prior to her first suspension. Further, the comment was not related to the decision-making process with respect to Ms. Oest’s continued status. Although Captain Reynolds did conduct the investigation into the “nice[-]looking legs” statement, he did not make the decision to terminate her employment. He merely referred the matter to the employee review board for a hearing. Accordingly, we do not believe that Ms. Oest can sustain a charge of discrimination under the direct method. 2. We next examine whether Ms. Oest has established a triable case under the familiar indirect or burden-shifting approach. Because employers usually are “careful not to offer smoking gun remarks indicating intentional discrimination,” the burden-shifting test first elucidated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), provides a means of evaluating indirect evidence of discrimination at the summary judgment stage. Robin, 200 F.3d at 1088. Under the indirect method, the plaintiff must establish a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; see also Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 672 (7th Cir.2000). If the employer then offers a nondiscriminatory reason for the employment action, the plaintiff must submit evidence that such an explanation is pretextual. See Bellaver, 200 F.3d at 493. More specifically, a Title VII plaintiff establishes a prima facie case of sex discrimination by showing (1) she was a member of a protected class; (2) she was meeting her employer’s legitimate business expectations; (3) she suffered an adverse employment action; and (4) the employer treated similarly situated employees outside the class more favorably. See Simpson v. Borg-Warner Auto., Inc., 196 F.3d 873, 876 (7th Cir.1999). If the plaintiff fails to establish this prima facie case, the employer is entitled to summary judgment without the court’s even reaching the two other steps of the McDonnell Douglas analysis — the employer’s articulating a legitimate, nondiscriminatory reason for its action and the plaintiffs burden to demonstrate that the purported legitimate reason" }, { "docid": "4617002", "title": "", "text": "735 (8th Cir.2003). In a qualified immunity inquiry, the first question is: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The second question is “whether the right was clearly established.” Id. The order of the Saucier inquiry is no longer mandatory, but often beneficial. Pearson v. Callahan, — U.S. -, ---, 129 S.Ct. 808, 818-20, 172 L.Ed.2d 565 (2009) A. As to the first question, Wimbley alleges race and sex discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. A plaintiff may survive summary judgment either by direct evidence of discrimination, or by creating an inference of discrimination under the burden-shifting test in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and then rebutting any proffered nondiscriminatory reason for the employment decision with sufficient evidence of pretext. King v. Hardesty, 517 F.3d 1049, 1057 (8th Cir.2008). Wimbley presented no direct evidence, so the McDonnell Douglas framework applies. Wimbley thus has the initial burden to establish a prima facie case of discrimination. See Bearden v. International Paper Co., 529 F.3d 828, 831-32 (8th Cir.2008). If she establishes a prima facie case, the burden shifts to Cashion to articulate a legitimate, non-discriminatory reason for his action. Id. If he articulates such a reason, the burden returns to Wimbley to prove that the proffered reason is pretextual. Id. 1. To establish a prima facie case of discrimination, Wimbley must show: (1) she is a member of a protected class; (2) she was meeting her employer’s legitimate job expectations; (3) she suffered an adverse employment action; and (4) similarly situated employees outside the protected class were treated differently. Fields v. Shelter Mut. Ins. Co., 520 F.3d 859, 864 (8th Cir.2008). Cashion does not contest the first three elements. He argues that Wimbley cannot establish that she was treated less favorably than a similarly situated, non-African-American, male. Wimbley responds that she is similarly situated" }, { "docid": "1913980", "title": "", "text": "no direct evidence of race discrimination. Plaintiff must therefore rely on the burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, Plaintiff must show that (1) she is a member of a protected class; (2) she was performing her job adequately; (3) she suffered a materially adverse employment action; and (4) others outside the protected class were treated more favorably. Gonzalez v. Ingersoll Mill. Mach. Co., 133 F.3d 1025, 1031-32 (7th Cir.1998) {citing McDonnell Douglas Corp., 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668). If these elements are shown, Plaintiff raises a rebuttable presumption of discrimination. At that point, “the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action.” Sirvidas v. Commonwealth Edison Co., 60 F.3d 375, 377-78 (7th Cir.1995). If Armstrong then offers a legitimate explanation, the presumption of discrimination dissolves and the burden of persuasion shifts back to Plaintiff to prove that Armstrong’s proffered reason was pretextual. Sirvidas, 60 F.3d at 378. There is no dispute in this case that Plaintiff satisfies the first element of her prima facie case. As an African-American, she falls within a protected class. Moreover, she clearly satisfies the third element in that she was terminated. Armstrong does dispute, however, that Plaintiff can satisfy the second and fourth elements. Specifically, Armstrong disputes that Plaintiff performed her job adequately and that similarly-situated white employees were treated more favorably. As noted above, Plaintiff has offered no affirmative evidence whatsoever in this case. As a result, she has failed to offer evidence to establish that she was performing the job adequately or that similarly-situated non-African-American employees were treated more favorably. On that basis alone, the court could find that Plaintiff has failed to establish a prima facie case of race discrimination and that summary judgment is therefore proper on this claim. Yet even if Plaintiff had satisfied her prima facie case, summary judgment in favor of Armstrong would be proper because Armstrong has offered evidence of a legitimate non-discriminatory reason for its decision to" }, { "docid": "22335472", "title": "", "text": "Douglas burden-shifting method. Plaintiffs utilizing the McDonnell Douglas burden-shifting formula for showing discriminatory intent must first establish a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Sheehan, 104 F.3d at 940. To do so in an ADEA-RIF-failure to transfer case, a plaintiff must present evidence that: (1) he is a member of a protected class; (2) he reasonably performed his job to his employer’s expectations; (3) he was subject to an adverse employment action; and (4) other similarly situated employees who were substantially younger than him were treated more favorably. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 693 (7th Cir.2000); Taylor, 69 F.3d at 779. Kimberly-Clark does not dispute the first three elements, so the only question is whether Radue established the last element. 1. Similarly situated. In determining whether two employees are similarly situated a court must look at all relevant factors, the. number of which depends on the context of the case. Spath v. Hayes Wheels Int’l-In., Inc., 211 F.3d 392, 397 (7th Cir.2000). For example, in disciplinary cases — in which a plaintiff claims that he was disciplined by his employer more harshly than a similarly situated employee based on some prohibited reason — a plaintiff must show that he is similarly situated with respect to performance, qualifications, and conduct. Byrd v. Ronayne, 61 F.3d 1026, 1032 (1st Cir.1995). This normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer’s treatment of them. Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir.1992). In a failure to transfer case some of these factors— like the severity of the infractions — are not relevant, although the same general comparisons must be made. As to the relevant factors, an employee need not show complete identity in comparing himself to the better treated employee, but he must show substantial similarity. Ercegovich v. Goodyear" }, { "docid": "12679362", "title": "", "text": "had discriminated against her on the basis of her race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (“Title VII”), and her age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634, and that Mecum and Korne-gay had denied her right to equal protection of the law in violation of § 1983 of the Civil Rights Act of 1865, 42 U.S.C. § 1983 (“§ 1983”). The district court dismissed the age discrimination claim, finding it barred by the Eleventh Amendment, in August 2004. That decision is not appealed. At issue in this case is the district court’s July 2005 grant of summary judgment to the defendants on the Title VII and § 1983 claims. The district court reasoned that because Goodwin had not alleged direct or circumstantial evidence of discrimination, and had failed to indirectly prove discrimination using the burden-shifting method outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the defendants were entitled to judgment as a matter of law. Goodwin now appeals that decision, claiming that she has proven discrimination through direct or circumstantial evidence, and that she has also indirectly proven discrimination through the McDonnell Douglas indirect burden-shifting method. II. Discussion A. McDonnell Douglas analysis In order to indirectly establish proof of discrimination in her Title VII claim, Goodwin must first establish the prima facie elements set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Those elements are: (1) she is a member of a protected class; (2) she was performing her job satisfactorily; (3) she suffered an adverse employment action; and (4) similarly situated employees outside of her protected class were treated more favorably. Traylor v. Brown, 295 F.3d 783, 788 (7th Cir.2002). If Goodwin successfully establishes each element of the prima facie case, the burden shifts to the University to assert a legitimate, nondiscriminatory reason for the challenged action. Simmons v. Chicago Bd. of Educ., 289 F.3d 488, 492 (7th Cir.2002). If it does" }, { "docid": "12819427", "title": "", "text": "Inc., — U.S. -, -, 111 S.Ct. 1196, 1203, 113 L.Ed.2d 158, 173 (1991) (quoting Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 684, 103 S.Ct. 2622, 2631-32, 77 L.Ed.2d 89 (1983)). In a Title VII case, the plaintiff carries the initial burden of proving a prima facie case of discrimination. Texas Depart. of Community Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once the plaintiff meets this initial burden, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for its actions. Id. Finally the burden shifts back to the plaintiff to prove that the defendant’s proffered reason was a mere pretext for discrimination. Id. In the matter before the Court, Hillsboro and the other defendants concede for the purposes of this motion that the plaintiff has met its initial burden to establish a prima facie case. Brief for Defendant, doc. 12, at 5. The defendants argue that they have met their burden by articulating a legitimate, nondiscriminatory reason for their actions. Namely, the defendants assert that Ms. Cameron’s contract was not renewed because she was a poor teacher, received parental complaints, and displayed a lack of professionalism. Id. However, the defendants have not sufficiently supported their assertions. The defendants, as the party moving for summary judgment, must show that no genuine dispute as to material facts exists. They have not met this burden in the case before the Court. A genuine factual dispute exists as to the reasons behind Ms. Cameron’s dismissal. The defendants point to the fact that Ms. Cameron was a poor teacher and that they received parental complaints about her. Brief for Defendants, doc. 12, at 5. Ms. Cameron cites that she generally received “satisfactory” evaluations from the defen dants. Brief for Plaintiff, doc 14, at 18. Moreover, the plaintiff notes that some of the defendants gave her positive recommendations in her application for graduate study. Id. Ms. Cameron adds that Superintendent John Burton stated that her" }, { "docid": "5245745", "title": "", "text": "the plaintiff to establish a prima facie case that his employment was adversely affected on the basis of race. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1972). This requires that the plaintiff establish by a preponderance of the evidence that (1) he was a member of a protected class; (2) he was subject to an adverse employment action; (3) he was qualified for the job; and (4) for the same or similar conduct he was treated differently than similarly situated non-minority employees. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir.1992); Sisson v. Bd. of Regents of the Univ. of Michigan, 174 Mich.App. 742, 746, 436 N.W.2d 747 (1989). Critical to a plaintiff’s case are the third and fourth elements of this test. To demonstrate that he is qualified, a plaintiff must show that he was performing his job to the satisfaction of his employer. Ang v. Procter & Gamble Co., 932 F.2d 540, 548 (6th Cir.1991). A plaintiff may not create an issue of fact by challenging the soundness or wisdom of his employer’s business decision. Ang, 932 F.2d at 549; see also Wilson v. Communications Workers of America, 767 F.Supp. 304, 307 (D.D.C.1991) (concluding that where a plaintiff fails to establish that his/her qualifications were similar to the qualifications of non-protected class employees, summary judgment in favor of the employer is appropriate). To satisfy the fourth element of this test, the plaintiff must demonstrate that the individuals to which the plaintiff is comparing himself dealt with the same supervisor, were subject to the same standards and were engaged in the same conduct'“without such differentiating or mitigating circumstances that would distinguish their conduct of the employer’s treatment of them.” Mitchell, 964 F.2d at 583. If the plaintiff presents a prima facie case of unlawful discrimination, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment decision. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Once the employer proffers evidence sufficient" }, { "docid": "23410017", "title": "", "text": "Given the circumstances, any argument that the district court abused its discretion in refusing to consider the transcripts is frivolous. B. We turn to Everroad’s claims for age and gender discrimination, and for retaliation. For each of the discrimination claims, Everroard lacks direct evidence of discrimination and relies on the McDonnell Douglas burden-shifting analysis to make her case. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Lucas v. PyraMax Bank, FSB, 539 F.3d 661, 666 (7th Cir.2008). To make out a prima facie claim under McDonnell Douglas, a plaintiff must demonstrate that (1) she is a member of a protected class, (2) she met her employer’s legitimate job expectations, (3) she suffered an adverse employment action, and (4) similarly situated employees outside of the protected class received more favorable treatment. Lucas, 539 F.3d at 666. If the plaintiff is able to establish a prima facie case of discrimination, the burden then shifts to the employer to offer a non-discriminatory reason for the adverse employment action. If the employer does so, the burden shifts back to the plaintiff to submit evidence demonstrating that the employer’s explanation is a pretext. Gates v. Caterpillar, Inc. 513 F.3d 680, 690 (7th Cir.2008). For each claim, the parties agree that Everroad can establish that she is a member of a protected class because she is female and over forty years of age, and that she suffered an adverse employment action when she was terminated. They disagree on the state of the record for the other two parts of the analysis. Everroad argues that the evidence is undisputed that she was meeting her employer’s legitimate job expectations and that similarly situated male and younger employers were treated more favorably. Scott Truck, of course, contends that Everroad was not meeting the company’s legitimate expectations because she was insubordinate. The company also contends that Everroad has failed to identify any male employees or younger employees who were similarly situated because no one else had engaged in insubordination. Normally, we first determine whether a plaintiff has established a prima facie" }, { "docid": "16345628", "title": "", "text": "Univ. at Carbondale, 233 F.3d 1036, 1044-45 (7th Cir.2000). She points out that the harassment was persistent and pervasive, yet the district court analyzed the incidents in a piecemeal fashion. However, reviewing the totality of the circumstances reveals boorish conduct and unexplained animosities toward Durkin, but not to the extent that it meets the legal requirements of Title VII. B. Sexual Discrimination Durkin also avers that the City sexually discriminated against her because instructors made offensive comments based on her gender and treated her differently than the male recruits. A plaintiff seeking to prove gender discrimination may either offer direct or circumstantial evidence of discrimination or provide indirect evidence through the framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Lim v. Trs. of Ind. Univ., 297 F.3d 575, 580 (7th Cir.2002). Durkin offers no direct or circumstantial evidence that she was terminated because of her gender and so we examine her claim under the McDonnell Douglas burden-shifting framework. Under McDonnell Douglas, a plaintiff establishes a pri-ma facie case of sex discrimination if she demonstrates that: (1) she is a member of a protected class; (2) she was meeting her employer’s legitimate employment expectations; (3) in spite of meeting the legitimate employment expectations of her employer, she suffered an adverse employment action; and (4) she was treated less favorably than similarly situated male employees. Markel v. Bd. of Regents of the Univ. of Wis. Sys., 276 F.3d 906, 911 (7th Cir.2002). The district court determined that Durkin’s harassment claim failed because no evidence existed that similarly situated male employees were treated more favorably than she. We agree. To show that another employee is “similarly situated,” a plaintiff must show that there is someone who is comparable to her in all material respects. Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.2002). We consider all relevant factors to determine whether two employees are similarly situated. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir.2000). Durkin must show that she was not different from her male coun terparts with' respect" }, { "docid": "23434641", "title": "", "text": "evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256-59, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The court held that Bobo satisfied the first three elements of his prima facie case of race discrimination, but as to the fourth element he failed to identify a similarly-situated Caucasian employee who was treated more favorably than he was. The court specifically ruled that Bobo and Spears were not similarly situated because they worked in different offices, held different jobs, and answered to different supervisors. We have already explained that we believe the district court applied Mitchell too narrowly, and in addition, evidence indicates that employment decisions for Bobo and Spears were made by the same high-level managers in the Mid-South District. The district court held that Bobo and Shumway were not similarly situated because Shumway’s unsubstantiated infraction was different from the accusation against Bobo. But UPS’s integrity policy covered various types of dishonesty and Bobo was not required to establish exact correlation with similarly situated employees, as we have already discussed. The district court further determined that Bobo did not make out a prima facie case of retaliation because, even assuming Bobo engaged in protected activity when he refused to disqualify Sharon Thompson, Bobo did not produce evidence to indicate that any alleged discrimination against Thompson occurred because of her race and/or gender. Bobo argues that the district court erred in disposing of his race discrimination claim for failure to identify a similarly-situated Caucasian comparator, and we agree for reasons already stated. But more importantly, Bobo asserts the court should have analyzed the claim under a mixed-motive analysis, citing Price Water-house v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). In Wright v. Murray Guard, Inc., 455 F.3d at 711-13, we explained the development of the law after Price Water-house, noting that Congress in 1991 added to Title VII a new statutory provision codifying the mixed-motive alternative for proving an unlawful employment practice. Id. at 711 (citing 42 U.S.C." }, { "docid": "19947171", "title": "", "text": "Merillat, 470 F.3d at 697 (citing Cullen v. Ind. Univ. Bd. of Trs., 338 F.3d 693, 702 (7th Cir.2003)). Warren has a high school diploma and admitted her computer skills were deficient. Although Lorenz’s bachelor’s and master’s degrees do not include a specific emphasis on computers, the evidence is undisputed that he knew more about computers than Warren. Moreover, the record establishes that at times Warren went out of her way to avoid using a computer at work because it was unfamiliar to her. Solo’s motion for summary judgment on Warren’s EPA claim was properly granted. B. Title VII Claim Warren next argues Solo paid her a lower hourly rate than Lorenz in violation of Title VII. She proceeds under the indirect method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), so the initial burden is on Warren to establish a prima facie case of discrimination. This requires Warren to show that (1) she is a member of a protected class; (2) she was performing her job to Solo’s expectations; (3) she suffered an adverse employment action; and (4) she was treated less favorably than similarly situated employees outside of the protected class. Id. Warren failed to establish a prima facie case because she is not similarly situated to Lorenz. An employee is similarly situated if the employee is “comparable to the plaintiff in all material respects.” Crawford v. Ind. Harbor Belt R.R. Co., 461 F.3d 844, 846-47 (7th Cir.2006). “In evaluating whether two employees are directly comparable, the court must look at all relevant factors, including whether the employees *(i) held the same job description, (ii) were subject to the same standards, (iii) were subordinate to the same supervisor, and (iv) had comparable experience, education, and other qualifications — provided the employer considered these latter factors in making the personnel decision.’ ” Bio v. Fed. Express Corp., 424 F.3d 593, 597 (7th Cir.2005) (quoting Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 532 (7th Cir.2003)). The fourth factor is the focus of this case: Warren and Lorenz have" } ]

[ { "docid": "18872220", "title": "", "text": "concerning any and all aspects of an officer’s personal private life, regardless of the possible connection between the officer’s personal activities and any legitimate concern the Police Department might have with the effect of those activities on the officer’s on-the-job performance; the police officer is required to answer such questions on penalty of losing his job. We have no doubt that such a policy is unconstitutional. The evil in such a policy is that it is not narrowly tailored to meet those legitimate interests of the Police Department. While the state arguably has a greater interest in regulating the conduct of its employees than that of citizens in general, cf. Pickering v. Board of Education, supra, that interest arises from concerns relating to the proper functioning of the particular employing entity. For example, the Police Department may have a legitimate interest in maintaining the efficiency and discipline of the Department. See Gasparinetti v. Kerr, 568 F.2d 311 (3d Cir. 1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2232, 56 L.Ed.2d 401 (1978). To the extent that an officer’s private life impacts upon these legitimate needs, then, the Police Department would have an interest in regulating, and concomitantly, investigating such activities. However, investigations which exceed the bounds set by the legitimate needs of the Department trample upon constitutionally protected zones of privacy. Additionally, we find that there is widespread danger of abuse in permitting a public employer to maintain such broad investigative power into the private decisions of its employees. Under the policy followed by the Police Department, for example, a policewoman could be terminated for failing to reveal whether she has had an abortion. Cf., Drake v. Covington County Board of Education, supra. In sum, to rephrase the words of Justice Stewart, this policy’s interference with privacy rights “goes far beyond what might be justified in the exercise of the [Police Department’s] legitimate inquiry into the fitness and competency of its [employees].” Shelton v. Tucker, 364 U.S. 479, 490, 81 S.Ct. 247, 253, 5 L.Ed.2d 231 (1960). We therefore hold that the widely acknowledged policy of the Police Department whereby" } ]

[ { "docid": "15381811", "title": "", "text": "she could refuse to answer questions, another warned that reluctance to answer personal questions would be interpreted by the examiner as an indication of serious emotional or sexual problems. Hampton himself noticed that Thorne was reluctant to discuss her affair with the officer. Under these circumstances, it is impossible to conclude that Thorne’s participation in the polygraph examination was anything other than a necessary condition of her employment as a police officer. A potential employee of the state may not be required to forego his or her constitutionally protected rights simply to gain the benefits of state employment. See, e.g., Kelley, 425 U.S. at 245, 96 S.Ct. at 1444; Elrod v. Burns, 427 U.S. at 347, 35759, 96 S.Ct. at 2673, 2681-82, 49 L.Ed.2d 547 (1976) . The more fundamental the rights on which the state’s activities encroach, the more weighty must be the state’s interest in pursuing that course of conduct. Compare Moore v. City of East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932,1935, 52 L.Ed.2d 531 (1977) (holding that “when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interest advanced and the extent to which they are served by the challenged regulation”) with Kelley, 425 U.S. at 245, 96 S.Ct. at 1444 (asserted substantive liberty interest of police officer in matters of personal appearance assumed to be protected by fourteenth amendment, but state interests underlying infringing regulation only subjected to rational relation test). In this case the inquiry by the City of El Segundo that appellant challenges under section 1983 bears on those matters acknowledged to be at the core of -the rights protected by the constitution’s guarantees of privacy and free association — appellant’s interest in family living arrangements, procreation and marriage. See, e.g., Briggs v. North Muskegon Police Department, 563 F.Supp. 585 (W.D.Mich.1983) (sustaining police officer’s challenge to city’s termination of his employment because of his cohabitation with a woman to whom he was not married). Accordingly, the City must show that its inquiry into appellant’s sex life was justified by the legitimate interests" }, { "docid": "12054072", "title": "", "text": "for off-duty “trysts” in French Quarter of New Orleans, “the city that care forgot,” could not be dismissed for his conduct); Drake v. Covington County Board of Education, 371 F.Supp. 974, 979 (M.D.Ala.1974) (employer could not dismiss unmarried, pregnant teacher for immorality; her conduct did not affect her competency or fitness as a teacher); Pettit v. State Board of Education, 10 Cal.3d 29, 35, 513 P.2d 889, 893, 109 Cal.Rptr. 665, 669 (1973) (revocation of teacher’s credential upheld for participating in sexual acts at “Swinger’s Party”; court distinguishes this case from those cases in which the conduct at issue occurs totally in private). We also note that post-1978 decisions, while not relevant to our determination of what law was clearly established at the time of Thorne’s application, also illustrate the continued disagreement about the nature and scope of constitutional protection. Compare Shawgo v. Spradlin, 701 F.2d 470, 480-83 (5th Cir.) (dismissal of officers for off-duty dating and cohabitation did not violate privacy rights; police departments may regulate such off-duty activities of officers), cert. denied, 464 U.S. 965, 104 S.Ct. 404, 78 L.Ed.2d 345 (1983); with Thorne, 726 F.2d at 470-71; Hoffman v. McNamara, 630 F.Supp. 1257, 1262 (D.Conn.1986) (discussing the difference between sexual activity occurring away from police academy and conduct occurring on the premises; right of privacy arguably protects the former while it does not protect the latter); Briggs v. North Muskegon Police Department, 563 F.Supp. 585, 590 (W.D.Mich.1983) (upholding right of sexual privacy for police officers), aff'd, 746 F.2d 1475 (6th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 3535, 87 L.Ed.2d 659 (1985); and Shuman v. City of Philadelphia, 470 F.Supp. 449 (E.D.Pa.1979) (police officers' private sexual activities are within constitutionally protected zone of privacy; unregulated inquiries violate rights). Thome established in this circuit that the Constitution prohibits unregulated, unrestrained employer inquiries into personal, sexual matters that have no bearing on job performance. However, at the time the events in this case transpired, we conclude that the cases had not delineated the parameters of this right to privacy with sufficient clarity to regard the right as “clearly" }, { "docid": "23229120", "title": "", "text": "Pickering balance in cases where public employees claim to have been fired or demoted in retaliation for exercising their rights of expressive association, see Hatcher v. Board of Public Education, 809 F.2d 1546, 1559 (11th Cir.1987); Schneider v. Indian River Community College Foundation, Inc., 875 F.2d 1537, 1542-44 (11th Cir.1989); cf. Boddie v. City of Columbus, 989 F.2d 745, 748 (5th Cir.1993), unless the employees claim to have suffered adverse employment action solely because they do not share the employer’s political affiliation, in which case we apply the Elrod-Branti analysis. See Terry, 866 F.2d at 376-77 (Elrod-Branti analysis applies when employee suffers adverse employment action because of political allegiance, but Pickering analysis applies when employee suffers adverse employment action because of expressive conduct). Furthermore, the Supreme Court has at least suggested that Pickering applies not only to speech and expressive association cases, but also to cases where public employees claim that employment decisions burden their liberty rights, as McCabe claims here. See Kelley v. Johnson, 425 U.S. 238, 245-49, 96 S.Ct. 1440, 1444-46, 47 L.Ed.2d 708 (1976) (citing Pickering and apparently applying analysis to employment rule burdening police officers’ liberty right to choose manner of personal grooming). Various other courts have made a similar suggestion. See, e.g., Fyfe v. Curlee, 902 F.2d 401, 405 (5th Cir.) (applying Pickering to adverse job transfer burdening public school teacher’s liberty right to control child’s education), cert. denied, 498 U.S. 940, 111 S.Ct. 346, 112 L.Ed.2d 310 (1990); Kukla v. Village of Antioch, 647 F.Supp. 799, 805 (N.D.Ill.1986) (applying Pickering balance to firings burdening male police sergeant’s liberty right to live with female dispatcher without benefit of marriage); Briggs v. North Muskegon Police Dep’t, 563 F.Supp. 585, 587 (W.D.Mich.1983) (applying Pickering to firing burdening police officer’s association and privacy right to cohabit with a woman other than his wife), aff'd, 746 F.2d 1475 (6th Cir.1984), cert. denied, 473 U.S. 909, 105 S.Ct. 3535, 87 L.Ed.2d 659 (1985). Consistently with Kelley and the other cases applying Pickering in situations involving liberty rights, we have stated in the past that the Pickering analysis applies to claims" }, { "docid": "4005579", "title": "", "text": "actions against an employee based on a spouse’s conduct, Adler’s discharge because of his wife’s lawsuit is well across the line. A relationship as important as marriage cannot be penalized for something as insubstantial as a public employer’s discomfort about a discrimination lawsuit brought by an employee’s spouse. We recognize that in cases where a public employee is discharged because of the allegedly disruptive effect of his own, normally protected speech, courts are required to seek “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Cf. Shawgo v. Spradlin, 701 F.2d 470, 482-83 (5th Cir.1983) (upholding authority of police department to discipline male and female officers for dating and alleged cohabitation). Whatever degree of state interest might be required to overcome a public employee’s interest in maintaining a First Amendment right of intimate association despite the employer’s concern about some action of the employee’s spouse, no Pickering-type balance is required in this case for two reasons. First, the defendants maintain that Adler’s supervisors were not aware of his wife’s lawsuit and that Adler was fired solely for reasons of political patronage. By proceeding in this way, the defendants disavow any suggestion that Adler was dismissed on the basis that his wife’s activity disrupted office operations. As framed by the parties, then, this case presents no need to balance the importance of Adler’s right of intimate association with his wife against any disruption in Adler’s workplace created by that association. Rather, this case hinges on a more discrete dispute as to the defendants’ true motives. If simple vindictiveness against the plaintiff on account of his wife’s lawsuit was the defendants’ true motive, a First Amendment violation would be established. Second, even if Adler’s supervisors had been aware of his wife’s lawsuit and even if a Pickering-type balance is appropriate to balance a public employee’s" }, { "docid": "2393318", "title": "", "text": "interest are not so protected. Thus, “[personal grievances, complaints about conditions of employment, or expressions about other matters of personal interest do not constitute speech about matters of public concern that are protected by the First Amendment.” Stroman v. Colleton County Sch. Dist., 981 F.2d 152, 156 (4th Cir.1992). But this First Amendment protection of speech on matters of public concern is not absolute and must be tempered by the government’s interest in governmental effectiveness, efficiency, order, and the avoidance of disruption. As an employer, the government is entitled to maintain discipline and ensure harmony as necessary to the operation and mission of its agencies. See Connick, 461 U.S. at 142, 147, 103 S.Ct. 1684. And for this purpose, the government has an interest in regulating the speech of its employees. As the Court in Connick summarized this interest: To this end, the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency of an office or agency. 461 U.S. at 151, 103 S.Ct. 1684 (quotation marks and citations omitted). In recognition of these potentially competing interests, to determine whether an employee has a cause of action under the First Amendment for retaliatory discharge, we must balance “the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Thus, to determine whether a public employee has stated a claim under the First Amendment for retaliatory discharge, we must determine (1) whether the public employee was speaking as a citizen upon a matter of public concern or as an employee about a matter of personal interest; (2) whether the employee’s interest in speaking" }, { "docid": "21433371", "title": "", "text": "suffered the consequences by losing his job. Ronald Dible’s discovered clandestine activity also broke his employer’s rules (outside employment and conduct that brought disrepute) and he properly suffered the consequences by losing his job. In addition, it can be seriously asked whether a police officer can ever disassociate himself from his powerful public position sufficiently to make his speech (and other activities) entirely unrelated to that position in the eyes of the public and his superiors. Whether overt or temporarily hidden, Ronald Dible’s activity had the same practical effect—it “brought the mission of the employer and the professionalism of its officers into serious disrepute.” Id. at 81, 125 S.Ct. at 524. That said, the Court has never explicitly defined what is or is not related, and we need not do so here. As in Roe, the result would be the same “under either line of cases.” Id. at 80, 125 S.Ct. at 524. The Dibles cannot prevail. We will explain. (1) Related Speech. If we determined that Ronald Dible’s activities were related to his public employment, we would necessarily approach his First Amendment claim as did the Supreme Court in Roe. It said: To reconcile the employee’s right to engage in speech and the government employer’s right to protect its own legitimate interests in performing its mission, the Pickering Court adopted a balancing test. It requires a court evaluating restraints on a public employee’s speech to balance “the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 82, 125 S.Ct. at 524-25. As the Court explained, before an employee is even entitled to have the balancing test applied, the “speech must touch on a matter of ‘public concern.’ ” Id. at 82-83, 125 S.Ct. at 525. The Court further pointed out: “Connick held that a public employee’s speech is entitled to Pickering balancing only when the employee speaks ‘as a citizen upon matters of public concern’ rather than ‘as an employee" }, { "docid": "7532712", "title": "", "text": "C. A. 6th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Justice White, with whom The Chief Justice and Justice Rehnquist join, dissenting. In 1977, respondent Briggs, then a married police officer separated from his wife, maintained an intimate relationship with a woman married to another man, and moved into an apartment with her. After this living arrangement was brought to the attention of the Police Chief, respondent was suspended from the Police Department for conduct unbecoming an officer. When respondent continued his conduct, he was informed that it violated state law, and he was discharged. The disciplinary sanctions were upheld by petitioner city’s City Council. Respondent sued, claiming that his discharge amounted to an unlawful violation of his civil rights. 563 F. Supp. 585 (WD Mich. 1984). The District Court and Court of Appeals for the Sixth Circuit rejected the argument that respondent’s activities were prohibited by state statutes forbidding adultery and lewd and lascivious cohabitation. Those courts also found that respondent’s fundamental right of sexual privacy was infringed. Respondent was awarded $35,000 in compensatory damages, and this award was upheld on appeal. 746 F. 2d 1475 (1984). The decision below stands in marked contrast to .that issued by another Federal Court of Appeals. In Shawgo v. Spradlin, 701 F. 2d 470 (1983), cert. denied sub nom. Whisenhunt v. Spradlin, 464 U. S. 965 (1983), the Fifth Circuit held that unmarried police officers could be disciplined for cohabiting with each other. Despite that in Shawgo there was no allegation of violation of state law, the Court of Appeals there ruled that any right to privacy implicated was qualified and was overridden by the governmental interests at stake in running a police department. The difference between the approaches of these two federal courts is evidence of a broader disagreement over whether extramarital sexual activity, including allegedly unlawful adulterous activity, is constitutionally protected in a way that forbids public employers to discipline employees who engage in such activity. Compare, e. g., Baron v. Meloni, 556 F. Supp. 796 (WDNY 1983); Suddarth v. Slane, 539 F." }, { "docid": "2611826", "title": "", "text": "a small community his conduct was or soon would be public knowledge, and that citizens would therefore lose respect for plaintiff in particular and the police force in general. Some courts have indeed emphasized the significant state interest in “the public’s perception of law enforcement,” Baron, 556 F.Supp. at 800-01; in “deterring conduct of employees which is such as to bring the [police department] into disrepute,” Suddarth, 539 F.Supp. at 618; in “the maintenance of public respect for police officers,” Fabio, 414 A.2d 82, 9 A.L.R. 4th at 611; and in preventing police officers’ conduct which “casts a poor light on the Department as a whole,” Wilson, 463 F.Supp. at 563. This Court rejects the notion that an infringement of an important constitutionally protected right is justified simply because of general community disapproval of the protected conduct. The very purpose of constitutional protection of individual liberties is to prevent such majoritarian coer cion. As the Fabio court said, “The government must tread lightly when it investigates and regulates the private activities of its employees. Public employers must be careful not to transform anachronistic notions of unacceptable social conduct into law.” 414 A.2d 82, 9 A.L.R. 4th at 611-12. The Court believes that Shuman accurately states the better view [W]e are compelled to conclude that there are many areas of a police officer’s private life and sexual behavior which are simply beyond the scope of any reasonable investigation by the Department because of the tenuous relationship between such activity and the officer’s performance on the job. In the absence of a showing that a policeman’s private, off-duty personal activities have an impact upon his on-the-job performance, we believe that inquiry into those activities violates the constitutionally protected right of privacy. 450 F.Supp. at 459. Without doubt, the police department has a legitimate interest in the personal sexual activities and living arrangements of its officers where such activities affect their job performance. However, the Court finds from the evidence that the effectiveness of plaintiff had not been impaired at the time of his suspension and subsequent discharge. In fact, the evidence supports" }, { "docid": "10940728", "title": "", "text": "infringed upon his right to privacy while off-duty, and deprived him of property — i.e., his job— without due process. The plaintiff seeks damages, a declaratory judgment holding unconstitutional the Muskegon Police Department Rules and Regulations as applied to him, and an order enjoining the defendants from enforcing the allegedly unconstitutional rules against him. In a case which arose in somewhat similar circumstances, this Court recently has had occasion to discuss the effect of public employment upon a person’s privacy and associational rights — specifically employment as a police officer. Briggs v. North Muskegon Police Department, 563 P.Supp. 585 (W.D.Mich.1983). That case arose out of the dismissal of a married part-time police officer for cohabiting with a married woman not his wife. The Court held that privacy and associational interests therein implicated were sufficiently fundamental to warrant scrutiny of the defendants’ actions on more than minimal rationality basis and that “[i]n the absence of a showing that a policeman’s private, off-duty personal activities have an impact upon his on-the-job performance ... inquiry into those activities violates the constitutionally protected right of privacy.” 563 F.Supp. at 591, citing Shuman v. City of Philadelphia, 470 F.Supp. 449, 459 (E.D.Pa.1979). In Briggs, the conduct for which the officer was discharged was entirely off-duty and had no proven effect upon his on-duty performance. Such is not the case here. In order to provide himself with an opportunity to enter into a liaison with Ms, Eshmawi, the plaintiff failed to follow departmental procedures which required him to forward the incident report which he made out to the detective bureau for investigation rather than investigating himself. In addition, the plaintiff admits that the incident report which he made out was incomplete. The plaintiff testified at the arbitration hearing and at the trial of this matter that on July 20, 1981 Ms. Eshmawi complained of her former boyfriend’s attempts to convince her to become a prostitute. The plaintiff was aware of the Department’s concern over the problem of prostitution in the city and also of the ongoing investigation of the former boyfriend who was a reputed pimp." }, { "docid": "6666667", "title": "", "text": "An officer has a right to a private life free from intrusion unless it interferes with his work performance or the efficiency of the governmental service. Municipalities may not require employees to give up their Constitutional rights as a condition of obtaining or continuing public employment unless there is a justification for doing so. Smith v. Price, supra. The Court would agree that the police department has an interest and may investigate some areas of the personal sexual activities of its employees if the activities have an impact upon job performance. In the absence of a nexus between the personal, off-duty activities and poor job performance, inquiry into these activities violates the Constitutionally protected right of privacy; a party’s private sexual activities are within the “zone of privacy” and protected from unwarranted governmental intrusion. See, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Griswold v. Connecticut, supra. . . . this protection is by no means absolute. For example, if the sexual activities of a public employee were open and notorious, or if such activities took place in a small town, the public employer might very well have an interest in investigating such activities and possibly terminating an employee. See Sullivan v. Meade Independent School District, 530 F.2d 799 (8th Cir. 1976); cf. Hollenbaugh v. Carnegie Free Library, 436 F.Supp. 1328 (W.D.Pa.1977), aff’d without opinion, 578 F.2d 1374 (3d Cir. 1978). In such a case, the actions of the public employee with respect to his or her private life could be deemed to have a substantial impact upon his or her ability to perform on the job. .. While the state arguably has a greater interest in regulating the conduct of its employees than that of citizens in general ... that interest arises from concerns relating to the proper functioning of the particular employing entity... To the extent that an officer’s private life impacts upon these legitimate needs, then," }, { "docid": "15381818", "title": "", "text": "have an impact upon an applicant’s on-the-job performance, and of specific policies with narrow implementing regulations, we hold that reliance on these private non-job-related considerations by the state in rejecting an applicant for employment violates the applicant’s protected constitutional interests and cannot be upheld under any level of scrutiny. See, e.g, Moore v. City of East Cleveland, 431 U.S. at 499, 97 S.Ct. at 1935 (heightened scrutiny where more substantial privacy interests implicated); Kelley v. Johnson, 425 U.S. at 245, 96 S.Ct. at 1444 (minimal scrutiny where minimal interests involved). In this- case, defendants have never attempted to introduce evidence that would show that appellant’s affair with a police officer before becoming a police officer, herself, affected or could potentially affect her job performance. The interests defendants alleged to justify a concern with applicants’ sexual histories are not implicated in this case. There was no indication of any .sexual deviance. The affair was not a matter of public knowledge, and could not therefore diminish the department’s reputation in the community. There was no reason to believe Thorne would engage in such affairs while on duty, or that the affair which had ended was likely to revive or cause morale problems within the department. Thorne’s conduct would not be a ground for discipline of a police officer, nor had any disciplinary measures against the officer involved been attempted. Accordingly, we must conclude that the district court erred in finding that neither the questioning of appellant regarding her sex life nor reliance on the information obtained about her sex life violated her privacy and associational interests. See, e.g., Briggs v. North Muskegon Police Department, 563 F.Supp. at 591 (holding that dismissal of police officer violated officer’s constitutional rights in the absence of a showing that cohabitation affected job performance); Shuman v. City of Philadelphia, 470 F.Supp. 449, 459 (E.D.Pa.1979) (holding that regulations permitting inquiry into off-duty relationship of police officers exceed scope of state’s legitimate interests and violated officer’s constitutional rights). Because the district court erred in dismissing Thorne’s section 1983 claim under Federal Rule of Civil Procedure 41(b), we vacate that" }, { "docid": "12054070", "title": "", "text": "869, 876, 51 L.Ed.2d 64 (1977). While it was clear at that time that the state could not intrude into these specifically delineated areas that touched upon sexual privacy, the Supreme Court had not expressly nor fully considered whether and to what extent state regulation of private consensual sexual behavior might be permissible. Carey v. Population Services International, 431 U.S. 678, 694 n. 17, 97 S.Ct. 2010, 2021 n. 17, 52 L.Ed.2d 675 (1977). In 1978, Thome addressed an issue that this court had not confronted previously: the striking of an appropriate balance between an individual’s right of privacy and free association and an employer’s interest in the off-duty private activities of its employees or prospective employees. Courts that had confronted related but factually distinguishable situations during this period had reached mixed results. Compare Wilson v. Swing, 463 F.Supp. 555, 563-64 (M.D.N.C.1978) (neither First Amendment right of association nor analogous right of privacy protected police officer who had extramarital affair with another officer; moreover government has substantial interest in discouraging adulterous conduct, since it could lead to potential disciplinary and morale problems) and Hollenbaugh v. Carnegie Free Library, 436 F.Supp. 1328 (W.D.Pa.1977) (although right of privacy has been extended to areas traditionally categorized as “immoral,” this right does not protect the right of a married person to live with an unmarried person), aff'd, 578 F.2d 1374 (3d Cir.), cert. denied, 439 U.S. 1052 (1978) (Marshall, J., dissenting) with Society For Individual Rights, Inc. v. Hampton, 63 F.R.D. 399, 400-01 (N.D.Cal. 1973) (civil servant may be discharged for immoral behavior only if the behavior “impairs the efficiency” of the service; employer could not discharge plaintiff merely because he was a homosexual)” aff'd, 528 F.2d 905 (9th Cir.1975); Mindel v. United States Civil Service Commission, 312 F.Supp. 485, 488 (N.D.Cal.1970) (post office violated employee’s right to privacy by terminating him for living with an unmarried woman; post office had shown no reason why plaintiff should have to live according to “its special moral code”); Major v. Hampton, 413 F.Supp. 66, 68-71 (E.D.La. 1976) (IRS agent who kept “fun place” or “shack pad”" }, { "docid": "7915929", "title": "", "text": "Taylor, 733 F.2d 1539, 1542-44 (11th Cir.1984) (assuming that Pickering is the appropriate standard for police officer's intimate association claim); Dike v. School Bd., 650 F.2d 783, 787 (5th Cir. Unit B 1981) (nominally applying strict scrutiny to school board’s burden on employee’s liberty interest in breast-feeding her child, but remanding for consideration of whether school board’s interests in avoiding disruption of educational process, ensuring that teachers perform their duties without distraction, and avoiding potential liability for accidents were strong enough to justify the burden); Fyfe v. Curlee, 902 F.2d 401 (5th Cir.1990) (applying Pickering balancing to public school employee’s First Amendment privacy claim arising out of termination due to decision to send her daughter to private school); Thorne v. City of El Segundo, 726 F.2d 459, 468-72 (9th Cir.1983) (applying sliding-scale scrutiny, so that ”[t]he more fundamental the rights on which the state's activities encroach, the more weighty must be the state’s interest in pursuing that course of conduct,” to employee’s privacy and intimate association claims); Kukla v. Village of Antioch, 647 F.Supp. 799, 803-12, 806 (N.D.Ill.1986) (analyzing employee's intimate association claim by \"weighing the amount of constitutional protection given to the conduct in question against the extent to which restriction of it is necessary for the government agency to function”); Briggs v. North Muskegon Police Dept., 563 F.Supp. 585 (W.D.Mich.1983) (balancing police officer’s intimate association and privacy rights against police department’s interest in officer's job performance), aff'd without opinion, 746 F.2d 1475 (6th Cir.1984), cert. denied, 473 U.S. 909, 105 S.Ct. 3535, 87 L.Ed.2d 659 (1985); Childers v. Dallas Police Dept., 513 F.Supp. 134, 139-42 (N.D.Tex.1981) (applying Pickering balancing test to city employee’s First Amendment association claim), aff'd without opinion, 669 F.2d 732 (5th Cir.1982). . One aspect of how Pickering free speech analysis maps onto intimate association cases might be misleading. In Connick, the Supreme Court made clear that a government employee can be protected under Pickering only if the speech in question relates to \"matters of public concern.” 461 U.S. at 147, 103 S.Ct. at 1690. Obviously, it would be paradoxical to require a government employee’s" }, { "docid": "15381812", "title": "", "text": "intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interest advanced and the extent to which they are served by the challenged regulation”) with Kelley, 425 U.S. at 245, 96 S.Ct. at 1444 (asserted substantive liberty interest of police officer in matters of personal appearance assumed to be protected by fourteenth amendment, but state interests underlying infringing regulation only subjected to rational relation test). In this case the inquiry by the City of El Segundo that appellant challenges under section 1983 bears on those matters acknowledged to be at the core of -the rights protected by the constitution’s guarantees of privacy and free association — appellant’s interest in family living arrangements, procreation and marriage. See, e.g., Briggs v. North Muskegon Police Department, 563 F.Supp. 585 (W.D.Mich.1983) (sustaining police officer’s challenge to city’s termination of his employment because of his cohabitation with a woman to whom he was not married). Accordingly, the City must show that its inquiry into appellant’s sex life was justified by the legitimate interests of the police department, that the inquiry was narrowly tailored to meet those legitimate interests, and that the department’s use of the information it obtained about appellant’s sexual history was proper in light of the state’s interests. Defendants’ own evidence shows a sufficient invasion of Thorne’s privacy interests to require justification. The information about the polygraph examination given to Thorne indicated that questioning about sexual behavior would be a significant part of the overall examination. Indeed a specific page of instructions was devoted to the importance of answering questions about sex. These instructions, in part, state: There are many psychological sexual problems created because of one’s religious, moral or other standards. Some of these problems may form the basis of a deviancy that - could materially affect one’s ability to properly function as an employee of a law enforcement agency. [T]his [psychological sexual problem] is a major problem area in the overall interview. On-the-job sexual or perverted de-viancies can be cause for termination of employed personnel. Hampton admitted he inquired into any social or sexual" }, { "docid": "4005578", "title": "", "text": "at 237, 110 S.Ct. 596 (rejecting intimate association claim based on brief motel encounters). We need not decide in this case whether in some circumstances the conduct, or even the identity, of a wife might raise such serious concerns about her husband’s suitability for public employment as to justify the husband’s discharge (or the discharge of an employee wife because of the identity or conduct of her husband). Cf. Wilson v. Taylor, 733 F.2d 1539 (11th Cir.1984) (noting but not resolving issue of whether police department could fire police officer for dating daughter of organized crime figure). The law has substantially progressed since the days when Mr. Bumble’s solicitor informed him that “the law supposes that your wife acts under your direction.” For purposes of this case, we need only rule that the activity of Adler’s wife in suing state officials for herself and another plaintiff because of employment discrimination in her department could not reasonably be found to justify his discharge. Wherever the line might be drawn that separates a state’s permissible and impermissible actions against an employee based on a spouse’s conduct, Adler’s discharge because of his wife’s lawsuit is well across the line. A relationship as important as marriage cannot be penalized for something as insubstantial as a public employer’s discomfort about a discrimination lawsuit brought by an employee’s spouse. We recognize that in cases where a public employee is discharged because of the allegedly disruptive effect of his own, normally protected speech, courts are required to seek “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Cf. Shawgo v. Spradlin, 701 F.2d 470, 482-83 (5th Cir.1983) (upholding authority of police department to discipline male and female officers for dating and alleged cohabitation). Whatever degree of state interest might be required to overcome a public employee’s interest in maintaining a" }, { "docid": "7915930", "title": "", "text": "803-12, 806 (N.D.Ill.1986) (analyzing employee's intimate association claim by \"weighing the amount of constitutional protection given to the conduct in question against the extent to which restriction of it is necessary for the government agency to function”); Briggs v. North Muskegon Police Dept., 563 F.Supp. 585 (W.D.Mich.1983) (balancing police officer’s intimate association and privacy rights against police department’s interest in officer's job performance), aff'd without opinion, 746 F.2d 1475 (6th Cir.1984), cert. denied, 473 U.S. 909, 105 S.Ct. 3535, 87 L.Ed.2d 659 (1985); Childers v. Dallas Police Dept., 513 F.Supp. 134, 139-42 (N.D.Tex.1981) (applying Pickering balancing test to city employee’s First Amendment association claim), aff'd without opinion, 669 F.2d 732 (5th Cir.1982). . One aspect of how Pickering free speech analysis maps onto intimate association cases might be misleading. In Connick, the Supreme Court made clear that a government employee can be protected under Pickering only if the speech in question relates to \"matters of public concern.” 461 U.S. at 147, 103 S.Ct. at 1690. Obviously, it would be paradoxical to require a government employee’s intimate association to relate to a matter of public concern as a threshold requirement for constitutional protection. The point of the Connick requirement, however, is simply to operationalize Pickering's purpose of upholding only the more fundamental rights of public employees and not turning federal courts into general review boards for personnel decisions. Id. Speech on matters of public concern is given categorical protection under Pickering and Con-nick because this type of speech \"occupies ‘the highest rung of the hierarchy of First Amendment values.’” Id. at 145, 103 S.Ct. at 1689 (quoting Carey v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 2293, 65 L.Ed.2d 263 (1980)). Therefore, inasmuch as Connick may be instructive in the intimate association context, it reaffirms the appropriateness of the sliding-scale scrutiny inherent in a balancing test that weighs intimate associations closer to the core of the First Amendment right more heavily than those closer to the periphery. . Bowers Dep. at 42. . Nor does Georgia recognize same-sex common-law marriages. See O.C.G.A. § 19-3-1; Georgia Osteopathic Hosp., Inc. v. O'Neal," }, { "docid": "20368689", "title": "", "text": "must employ a two-step analysis. Kincade v. City of Blue Springs, 64 F.3d 389, 395 (8th Cir.1995). First, the court must determine whether the speech at issue can be “fairly characterized as constituting speech on a matter of public concern.” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). Second, the court must consider whether the interest of the employee, as a citizen, in commenting on matters of public concern outweighs the interest of the state, as an employer, in promoting the efficiency of the public services it performs. Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35. Both of these questions are issues of law for the court to decide. Shands v. City of Kennett, 993 F.2d 1337, 1342 (8th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 880, 127 L.Ed.2d 75 (1994). It is undisputed in the present ease that Tyler’s letter is properly characterized as protected speech and that the demotion was a result of that letter. Accordingly, the only issue remaining for our review is a balancing of Tyler’s right to free speech against the interests of the Mountain Home Police Department in fulfilling its responsibilities to the public. Factors relevant in weighing the competing interests of the employer and employee .are whether the speech creates disharmony in the work place, interferes with the speaker’s ability to perform his duties, or impairs working relationships with other employees. Id. at 1344; Kincade, 64 F.3d at 397. It has been recognized that a police department has a more significant interest than the typical government employer in regulating the speech activities of its employees in order “to promote efficiency, foster loyalty and obedience to superior officers, maintain morale, and instill public confidence.” Shands, 993 F.2d at 1344 (citations omitted). “Because police departments function as paramilitary organizations charged with maintaining public safety and order, they are given more latitude in their decisions regarding discipline and personnel regulations than an ordinary government employer.” Tindle v. Caudell, 56 F.3d 966, 971 (8th Cir.1995). The public safety employer’s determinations of both the potential for disruption as a" }, { "docid": "11869569", "title": "", "text": "sexual harassment incident, which effectively forced his retirement, in retaliation for his participation in the Munoz investigation and trial.” Reilly, 427 F.Supp.2d at 514. Appellants deny that Reilly had the claimed First Amendment right, an issue of law appropriate for us to consider. The District Court evaluated Reilly’s First Amendment retaliation claim under the following three-step framework: (1) the employee must demonstrate that his/ her speech is protected, that is, it addresses a matter of public concern and the “employee’s interest in the speech outweighs” the employer’s countervailing interest “in promoting workplace efficiency and avoiding workplace disruption” (i.e., the balancing test established in Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)); (2) the employee must prove that his/her speech was “a substantial or motivating factor” in the retaliatory action against him/her, which, if proven; (3) shifts the burden to the employer to prove that the “allegedly retaliatory action would have been taken absent the protected [speech].” Id. at 514-15 (quoting Springer v. Henry, 435 F.3d 268, 275 (3d Cir.2006)). In undertaking the requisite analysis, the District Court relied on Baldassare v. New Jersey, 250 F.3d 188, 195-97 (3d Cir.2001), in which we held that plaintiffs conduct and expression in an internal investigation of other officers at the Bergen County Prosecutors’ Office was a matter of public concern, and Pro v. Donatucci, 81 F.3d 1283, 1291 n. 4 (3d Cir.1996), in which we held that “the context of [courtroom testimony] raises the speech to a level of public concern regardless of its content....” The District Court concluded that “Reilly’s participation in the internal investigation of alleged criminal wrongdoing within the Atlantic City Police Department is protected by the First Amendment” because he conducted “an official internal investigation” into other officers’ alleged criminal wrongdoing and then “testified at the Munoz trial.” Reilly, 427 F.Supp.2d at 515. The Court held that the Pickering balancing favored Reilly because the public’s interest in uncovering police corruption outweighed the police department’s interest in avoiding disruption in the workplace. Id. at 515-16. Next, the District Court pointed to record evidence" }, { "docid": "14717683", "title": "", "text": "with respect to certain basic matters such as private social activities. See Shawgo v. Spradlin, 701 F.2d 470, 482 (5th Cir.1988) (holding no violation of the officers’ qualified right to privacy where state prescribed cohabitation of two police officers of different rank), cert. denied, 464 U.S. 965, 104 S.Ct. 404, 78 L.Ed.2d 845 (1983) quoting Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). However, the right to privacy is not unqualified. Id. See opinion of Justice Brennan, dissenting from the decision to deny certiorari in Shawgo, 464 U.S. at 971, 104 S.Ct. at 408 (stating that “lawful, off-duty sexual conduct clearly implicates the fundamental right to be free, except in very limited circumstances,” from unwanted governmental disclosure or interference with certain kinds of “intensely personal decisions,” although pointing out that lower courts “have divided sharply” on issues concerning the regulation of the private conduct of public employees). See also McCabe v. Sharrett, 12 F.3d 1558, 1568 (11th Cir.1994) (finding liberty-grounded intimate association right of public employees entitled to special constitutional protection). The lower courts are divided on the question of whether sexual conduct outside marriage is constitutionally protected. See Briggs v. North Muskegon Police Dep’t. 563 F.Supp. 585, 589-90 (W.D.Mich.1983) (collecting cases), aff'd, 746 F.2d 1475 (6th Cir.1984), cert. denied by less-than-unanimous vote, 473 U.S. 909, 105 S.Ct. 3535, 87 L.Ed.2d 659 (1985). See generally Annotation, 9 ALR 4th 614 (collecting divergent state holdings on police officers’ discipline for sexual misconduct). Shuman v. Philadelphia, 470 F.Supp. 449, 459 fn. 8 (E.D.Pa.1979) (“In the absence of a showing that a policeman’s private, off-duty personal activities have an impact upon his on-the-job performance,” the court reasoned, “we believe that inquiry into those activities violates the constitutionally protected right of privacy”). See Briggs, 746 F.2d at 1475 (married policeman could not be fired for living with a woman other than his wife); Wilson v. Taylor, 733 F.2d 1539, 1544 (11th Cir.1984) (policeman could not be fired for dating daughter of convicted felon); Thorne v. City of El Segundo, 726 F.2d 459, 471 (9th Cir.1983) (inquiry into" }, { "docid": "14717684", "title": "", "text": "special constitutional protection). The lower courts are divided on the question of whether sexual conduct outside marriage is constitutionally protected. See Briggs v. North Muskegon Police Dep’t. 563 F.Supp. 585, 589-90 (W.D.Mich.1983) (collecting cases), aff'd, 746 F.2d 1475 (6th Cir.1984), cert. denied by less-than-unanimous vote, 473 U.S. 909, 105 S.Ct. 3535, 87 L.Ed.2d 659 (1985). See generally Annotation, 9 ALR 4th 614 (collecting divergent state holdings on police officers’ discipline for sexual misconduct). Shuman v. Philadelphia, 470 F.Supp. 449, 459 fn. 8 (E.D.Pa.1979) (“In the absence of a showing that a policeman’s private, off-duty personal activities have an impact upon his on-the-job performance,” the court reasoned, “we believe that inquiry into those activities violates the constitutionally protected right of privacy”). See Briggs, 746 F.2d at 1475 (married policeman could not be fired for living with a woman other than his wife); Wilson v. Taylor, 733 F.2d 1539, 1544 (11th Cir.1984) (policeman could not be fired for dating daughter of convicted felon); Thorne v. City of El Segundo, 726 F.2d 459, 471 (9th Cir.1983) (inquiry into police candidate’s past sexual history was unconstitutional); Swope v. Bratton, 541 F.Supp. 99, 109 (W.D.Ark.1982) (married policeman could not be disciplined for live-in arrangement with woman employed by the department). There does seem, however, to be wide agreement that off-duty sexual activities are not protected when they violate a statute. See Walls v. Petersburg, 895 F.2d 188, 193 (4th Cir.1990) (inquiring about police candidates’ criminal homosexual activities constitutionally permissible); Fleisher v. City of Signal Hill, 829 F.2d 1491, 1498 (9th Cir.1987) (disciplining police officer for statutory rape constitutionally permissible); Fugate v. Phoenix Civil Serv. Bd., 791 F.2d 736, 741-742 (9th Cir.1986) (disciplining police officer for relations with prostitutes constitutionally permissible); Andrade v. Phoenix, 692 F.2d 557, 559 (9th Cir.1981) (disciplining police officer for criminal adultery constitutionally permissible). Cf. Daley v. Judge of District Court of Western Hampden, 304 Mass. 86, 97-98 23 N.E.2d 1, 8 (1939) (upholding removal of chief of police for driving while intoxicated in violation of statutory duty). A public employer may discipline tenured public employees for private activities “reasonably related to" } ]

[ { "docid": "22280681", "title": "", "text": "that he did not file a timely notice of appeal due to excusable neglect, is that his attorney was in trial from August 22 to September 2, 1988. This is not the sort of unique and extraordinary circumstance that warrants the granting of an extension to appeal under Rule 4(a)(5)’s “excusable” neglect standard. To begin with, Baker’s proffered reason does not address the obvious question of what happened between the district court’s entry of judgment on August 3 and the beginning of his attorney’s other trial on August 22. Assuming the attorney received notice of the judgment several days after its entry, he had ample time to file an appeal long before the other trial began. More fundamentally, Baker’s position boils down to an assertion that his attorney was too busy to comply with the mandatory and jurisdictional 30-day requirement of Rule 4(a)(1). As we recently said in Marsh, “the filing of a notice of appeal does not require much thought or time and ... the fact that an attorney [is] 'busy’ on another matter [does] not constitute excusable neglect.” At 131 (citing Pinero-Schroeder v. Fed. Natl. Mortgage Ass’n., 574 F.2d 1117, 1118 (1st Cir.1978)). Here, the notice of appeal contains 37 words. Even if Baker’s attorney was in trial 12 hours a day continuously from August 22 onwards, he could have found a few minutes sometime before September 2 to draft and deliver to the district court such a simple and important document. The attorney’s failure to do so may well amount to neglect, but it is not excusable. Under all the circumstances, the district court abused its discretion in holding otherwise. V. Conclusion In light of the foregoing, we reverse the district court’s order granting Baker an extension of time in which to file a notice of appeal, and dismiss this appeal for want of jurisdiction. Rule 4(a)(1) states in pertinent part that \"[i]n 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" } ]

[ { "docid": "22287563", "title": "", "text": "claims that this failure to act had the effect of discharging him from his obligations as an uncompensated guarantor. The final issue is that of Granados’s culpability. There is certainly no evidence that his untimely filing was willful. See United Coin, supra, 705 F.2d at 845. Furthermore, while Granados’s counsel should have known and followed the local rules, the circumstances of this case combined to create a much more serious consequence for Field’s ignorance of Local Rule 3.7 than might have otherwise occurred. Specifically, we note the fact that Field received Hibernia’s motion for summary judgment just before the Christmas holidays and that the district judge’s notice of the filing deadline did not reach Field until the day after the deadline had passed. Under other circumstances, Field may have received the notice in time to file the responsive pleadings, which he had already prepared, before the deadline. At any rate, once Field discovered that the deadline had passed, he moved with all possible speed to file an unexecuted set of pleadings and to secure leave of court for a late filing. The minimal tardiness involved in this ease was not enough to justify depriving Granados of the right to present a substantive defense. Field’s neglect here should have been excused. In denying Granados’s motion to set aside the summary judgment, the district court emphasized two additional procedural errors committed by Granados. First, the court noted that, although Field was notified of the need to file a motion to be admitted pro hoc vice on September 26, 1984, he failed to do so until January 4, 1985. Second, the court stated that Granados’s proffered response was not in the form required by 28 U.S.C. § 1746. These deficiencies are insufficient to justify the court’s action. Field’s delay in filing a motion to be admitted pro hoc vice was apparently caused by the fact that he did not receive the required certification from the Bar of the State of Virginia until December 27, 1984. At any rate, it does not appear that this delay caused any significant inconvenience to the court or" }, { "docid": "22569536", "title": "", "text": "at sentencing. His notice was not immediately filed, and eventually Leaehman sent a letter to the clerk of courts for the Western District of Kentucky inquiring about his appeal. In the interim, Leachman’s trial attorney had withdrawn from the case and failed to pursue the appeal. The clerk's office informed Leaehman that no notice of appeal had been filed and filed one on his behalf on November 2, 2000, some fifty-six days after the September 7 judgment. Since under Fed. R.App. P. 4(b)(1)(A), the defendant only has ten days to file his notice, it was dismissed as untimely by a panel of this Court on January 25, 2001. Leaehman filed a § 2255 motion for habeas relief in the district court, seeking to file a delayed direct appeal. The judge granted the request without explanation, presumably because a defendant is entitled to habeas relief when he requests that a notice of appeal be filed, and his counsel ignores his request. Such failure by counsel constitutes per se ineffective assistance under the Sixth Amendment and entitles the defendant to ha-beas relief under § 2255. In such a case, the relief available to the defendant is a delayed direct appeal. See, e.g., Ludwig v. U.S., 162 F.3d 456, 458-59 (6th Cir.1998); Rosinski v. U.S., 459 F.2d 59, 59-60 (6th Cir.1972) (per curiam). Hence, this matter is timely before this Court as a direct appeal. . This section refers to violations of § 841(a), which prohibits the manufacture, distribution, dispensing, or possession of a controlled substance. 21 U.S.C. § 841(a)(1). . Even though this Circuit's prior holding that Apprendi applies to increases in statutory minimums put it in a more than overwhelming minority with its fellow Circuits, it is interesting to note that the Harris result was approved by only a 5-4 margin in the Supreme Court. . Incidentally, we have previously found that a defendant waives the constitutional rights proffered in Apprendi when he pleads guilty. If a defendant \"stipulate[sj to the amount of drugs for which he was held responsible, and the district court did not rely on any fact outside" }, { "docid": "20291876", "title": "", "text": "thereof — for Cates’ delay in requesting the extension. The district court acknowledged that Cates perhaps received inadequate representation from the time of the verdict until the appointment of his new attorney, but Cates’ new attorney then waited two months before requesting the extension. And despite this lengthy delay, neither the motion for the extension or its supporting affidavit provided any explanation aside from Cates’ attorney having spent “an extended amount of time” reviewing discovery materials and meeting with Cates and his family. But neglect due to a busy schedule is generally not excusable. Harrington v. City of Chi, 433 F.3d 542, 548 (7th Cir.2006); see also United States v. Dumas, 94 F.3d 286, 289 (7th Cir.1996) (“ ‘Counsel’s schedule and defendant’s responsibilities,’ without further elaboration, are insufficient reasons to support the necessary determination that there was ‘excusable neglect.’ ‘Excusable neglect’ requires something more than a simple failure to meet the deadline due to a busy schedule.”). The district court recognized that Cates’ attorney required some time to familiarize himself with the case but found his vague excuses inadequate to justify the two-month' delay in this ease. On appeal, Cates points to nothing in the record that convinces us otherwise. Given Cates’ boilerplate motion and his attorney’s lackluster attempt to justify the delay, the district court did not abuse its discretion in determining that this factor weighed heavily against a finding of excusable neglect. See In re Canopy Financial, Inc., 708 F.3d 934, 937 (7th Cir.2013) (“Whenever; the judiciary adopts an ‘all the facts and circumstances’ approach, as Pioneer Investment Services did, litigants need to supply those details.”); cf. Munoz, 605 F.3d at 372 (approving the district court s finding of excusable neglect where the newly-appointed attorney requested leave to file, an Untimely post-conviction motion five days after being appointed and filed the motion within ten weeks, given “the sensitive posture in which [the attorney] took over the case and the unique difficulties she presumably faced as a result”). Regarding the length and impact of the delay and prejudice to the government, the district court concluded that both factors weighed" }, { "docid": "3330933", "title": "", "text": "filed on February 5 and February 20, do not satisfy these criteria. Neither motion identifies a single sought-after fact. Neither motion indicates whether the desired information can be gathered within a reasonable interval. And neither motion relates how that information, if unearthed, would influence the outcome of the pending summary judgment motion. What the February motions do attempt to provide are reasons why an extension should be granted. The defendants attribute their predicament to a week-long delay in the taking of the plaintiffs deposition, a week-long delay in the plaintiffs service of answers to interrogatories, and defense counsel’s professed “need” to travel to Florida “in matters regarding to [sic] our legal profession.” These are more excuses than reasons. The deposition was completed a full two weeks before the court-appointed deadline for filing an opposition, and the plaintiff answered the interrogatories in approximately the same time frame. Last — but far from least — the fact that counsel may have bitten off more than he could chew does not exempt him from meeting court-appointed deadlines. See Mendez v. Banco Popular, 900 F.2d 4, 6-7 (1st Cir.1990) (collecting cases); see also Pinero Schroeder v. FNMA, 574 F.2d 1117, 1118 (1st Cir.1978) (per curiam) (“Most attorneys are busy most of the time and they must organize their work so as to be able to meet the time requirements of matters they are handling or suffer the consequences.”). The defendants now try to rectify some of their earlier omissions. In this court, they attribute the need for a further extension to a motley of events, including Nieves’s untimely demise, a switch in counsel resulting from his death, and the fact that the plaintiffs attorneys closed their offices for two weeks. These impor- tunings are too little and too late. A party who seeks to be relieved from a court-appointed deadline has an obligation, at a bare minimum, to present his arguments for relief to the ordering court. An unexcused failure to do so constitutes a waiver. See McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir.1991) (explaining that matters not raised" }, { "docid": "22937886", "title": "", "text": "without reservation. After an exchange of letters, the parties agreed that the court would have to resolve the issue and that, in the interim, defendants would turn over the personnel files subject to the language of the proposed protective order. Defendants filed a Motion for Protective Order on October 11. Plaintiff responded with a Motion to Compel and a Motion to Extend Discovery by at least sixty days. Unaware that plaintiff had filed the Motion to Compel, on October 17 defendants notified plaintiff that they were prepared to produce (subject to the proposed protective order) all but one of the personnel files. It was not until this time, more than five months after defendants’ initial accession to plaintiffs discovery requests and only a few weeks before the discovery deadline, that plaintiffs counsel requested an appointment to view documents made available to them by defendants. On November 4, defendants filed a response to plaintiffs motions, explaining that while they did not object to an extension of the discovery period, they did object to plaintiffs representations that defendants were the cause of the delay. On November 18, by marginal entry order, the district court denied plaintiffs motions to compel and to extend discovery and granted defendants’ request for a protective order. On December 10, defendants filed a Motion for Summary Judgment. In an attempt to gain further evidence to contest defendants’ motion, plaintiffs counsel contacted and interviewed two current managers of AT & T. Plaintiff then noticed the depositions of these two employees. Defendants moved to prohibit the taking of these depositions, citing passage of the discovery deadline two months earlier. On January 16, 1997, just over thirty days prior to trial, plaintiffs counsel sent the court a letter stating that they had another trial scheduled for the week of February 18 and asking the court for “guidance” in finding a solution because their small firm (of two attorneys) could not handle two trials in such close proximity. This request was not signed by plaintiff, nor was a copy of the conflicting trial assignment attached. Furthermore, counsel did not represent to the" }, { "docid": "14640075", "title": "", "text": "that address. Also, plaintiff made no attempts at service prior to this Court’s January 9, 1984 inquiry into the status of this case. By January 23, 1984, as indicated by plaintiff’s counsel’s letter to this Court of that same date, plaintiff was aware that the January 16, 1984 mail service was ineffective as to the individual defendants. In that letter, plaintiff’s counsel expressed his intention to serve those defendants through means of a private process server. Yet plaintiff and/or his counsel delayed almost another entire month before hiring a process server and attempting personal service, thereby missing the 120-day, February 13, 1984 deadline by about ten days. No explanation whatsoever has been offered by plaintiff for this latter delay. Furthermore, as of February 6, 1986, when defendants filed a motion to dismiss for insufficient service of process, or soon thereafter, plaintiff was put on notice that the mail service on the partnership may have been ineffective. Finally, plaintiff did not file a Federal Civil Rule 6(b) motion requesting an extension of time for service, a fact which has been noted by other courts as at least some evidence of lack of diligence. See Coleman v. Greyhound Lines, Inc., 100 F.R.D. at 478; Sanders v. Marshall, 100 F.R.D. at 482-83 (citing 4 Wright & Miller, § 1138 and 2 Moore’s Federal Practice ¶ 4.46); Burks v. Griffith, 100 F.R.D. at 492. A plaintiff seeking an extension of the 120-day period of Rule 40) does well to apply for the extension while the period is still alive. The court is by no means precluded from granting the extension after the period’s expiration ..., but an application beforehand does go some way towards establishing the kind of diligence needed to appeal to a court’s discretion. Practice Commentary C4-38, Federal Civil Rule 40), 28 U.S.C. (Supp.1986). It is true that during the period in question in the within case, plaintiff was not represented by present counsel, who entered his appearance on March 14,1985, well after plaintiff’s early 1984 attempts at service. The parties have agreed, however, that prior counsel’s health problems do not excuse" }, { "docid": "22124889", "title": "", "text": "week extension to file a reply. At most, they would have won a quick but unmerited victory, the loss of which we do not consider prejudicial. Cf. Bateman, 231 F.3d at 1225 (finding insufficient prejudice where defendants “would have lost a quick victory and, should it ultimately have lost the summary judgment motion ... would have to reschedule the trial date”).. Second, the length of the delay was a mere three days; filing the opposition then would not have adversely affected either the summary judgment hearing date, which was ten days away, or the trial, which was two and a half months away. Compare id. (finding a delay of over a month “not long enough to justify denying relief’). Third, while a calendaring mistake caused by the failure to apply a clear local rule may be a weak justification for an attorney’s delay, we have previously found the identical mistake to be excusable neglect. See, e.g., Pincay, 389 F.3d at 860. In fact, in Bateman, the attorney’s reasons for his nearly month-long delay, the need to recover from jet lag and to review mail, were far less persuasive. Yet, we concluded that excusable neglect was established. Bateman, 231 F.3d at 1225. Fourth, there is no indication that Ahanchian’s failure to file the opposition on time was the result of bad faith. Ahanchian’s counsel displayed his (mistaken) belief that the oppositions were due on September 4, 2008, in his initial request for an extension of time. Thus, his reliance on the calendaring mistake was not a bad-faith, post-hoc rationalization concocted to secure additional time. Ahanchian’s counsel had no history of missing deadlines or disobeying the district court’s orders; in fact, he demonstrated a sensitivity to the court’s orders and deadlines by promptly seeking extensions of time where necessary. We have found good faith in situations where attorneys acted far less diligently and conscientiously. See id. (“[Counsel] showed a lack of regard for his client’s interests and the court’s docket. But there is no evidence that he acted with anything less than good faith.”). By failing to apply the Pioneer/Briones equitable balancing" }, { "docid": "18596595", "title": "", "text": "Rules of Evidence, both of which provide that new rules govern pending proceedings where just and practicable. We think that § 3505 should receive the same construction, and we hold that it was appl-icble here where just and practicable. If § 3505 controls, we next consider whether the government’s letter of November 26,1984 constituted timely and adequate notice to the defense and whether defendant can establish good cause not to treat his failure to make a pretrial motion as a waiver. Under § 3505, the government must notify the defendant “as soon after the arraignment as practicable” of its intention to offer foreign documents into evidence. Here, Tedder was arraigned on September 20, 1984 and § 3505 took effect on November 12, 1984. The government notified defense counsel of its intent to rely on § 3505 on November 26, 1984, the day previously scheduled for pretrial motions. Thus, the government provided the requisite notice approximately one month after Tedder’s arraignment and fourteen days after § 3505 became effective. While the government could have been more diligent in notifying the defense, the lapse between the receipt of notice and the defense motion filed on January 7, 1985 is so great that Tedder’s delay in filing his opposition cannot logically be attributed solely to the government’s lateness. The defendant should have been able to prepare a relatively simple motion challenging the trustworthiness of the bank records between November 26 and December 4, the date on which the trial began. Even if some slight delay would have been excusable, delay of more than one month is not. Accordingly, we hold that defendant has waived his evi-dentiary objections under the statute. 18 U.S.C. § 3505. G. Exculpatory Statements Tedder next contends that his sixth amendment right to cross-examine the witnesses against him was violated when the government blocked his efforts to introduce statements by Allen Patterson tending to exculpate Tedder. Defendant cites two exculpatory statements, as to both of which the government’s objection was sustained. Each statement occurred during Patterson’s post-arrest conversations with his parents, in which he suggested that Tedder was innocent of" }, { "docid": "18223529", "title": "", "text": "counsel — could have realized that his limitation period had nearly run and could have begun preparing to file the federal habeas petition within a reasonably quick time after the state proceedings concluded. Although it might have been nearly impossible to file the federal petition within the one day McClendon had remaining in his statutory limitation period, a reasonably diligent effort to file within a reasonably quick time might have entitled McClendon to equitable tolling. Because McClendon points to no diligent effort, and because his eleven-month delay — or, if we count from Brown, his fifteen-month delay — was not reasonable given these circumstances, no equitable tolling is available. Comparison with two previous cases supports our conclusion. In Miller v. Collins, 305 F.3d 491 (6th Cir.2002), we found equitable tolling appropriate for a petitioner who claimed that he lacked notice of the relevant deadline and acted diligently in his pursuit. There, the petitioner argued that he had never received a copy of a state court decision, and thus did not know that it was time for him to proceed to the next stage in his proceedings. Id. at 495-96. The record supported his claim that he lacked knowledge, as he had filed a motion in the state court asking it to proceed to judgment while he thought, erroneously, that his ease was still pending. Id. Moreover, once the state court informed the petitioner that it had already ruled, the petitioner filed at the next stage within three weeks. Id. We found his lack of notice and his diligence sufficient to merit equitable tolling. In contrast, and in a case more like that at issue here, the court denied equitable tolling in Dunlap v. United States. Although Dunlap differs from this case in that the petitioner there admitted to having notice of the relevant deadline, 250 F.3d at 1010, the petitioner there was denied the benefits of equitable tolling despite greater diligence. The petitioner in Dunlap missed his deadline by two months and, as the court there noted, “offer[ed] no explanation for this delay.” Id. Here, although McClendon suggests that his" }, { "docid": "4857516", "title": "", "text": "their representation agreement did not cover “post judgment litigation” and that plaintiff would “need to seek other counsel to advise and/or represent you in your appeal.” (Pl.’s Mot. Ex. 1; see also Pl.’s Reply at 1 n. 1.) Plaintiff contacted current counsel, Hnin Khaing, via e-mail on January 4, 2012, but due to scheduling conflicts, Khaing could not meet with plaintiff until January 10, and at that time, she agreed to represent him. (Pl.’s Mot. at 2-3.) On January 9, 2012, the period to file a notice of appeal lapsed. See Fed. R.App. P. 4(a)(1)(A). On January 11, 2012, plaintiff, through an associate of Khaing’s, filed a notice of appeal. (Notice of Appeal [Dkt. No. 24].) On February 6, 2012, plaintiff timely filed a motion requesting that this Court extend the deadline to file a notice of appeal to January 11, 2012. See Fed. R.App. P. 4(a)(5)(A)®. Plaintiff alleges that the following circumstances amount to both “good cause” and “excusable neglect” justifying the Court’s granting of such extension under Rule 4(a)(5): “(1) termination of representation of previous counsel; (2) improper advice by previous counsel; (3) lack of timely knowledge of this Court’s entry of summary judgment; (4) lack of sufficient time to seek new counsel; and (5) lack of financial ability to secure new counsel.” (Pl.’s Mot. at 1-2.) Plaintiffs motion, defendants’ opposition, and plaintiffs reply are now before the Court. ANALYSIS I. LEGAL STANDARD The filing of a timely notice of appeal is both mandatory and jurisdictional. Moore v. S.C. Labor Bd., 100 F.3d 162, 163 (D.C.Cir.1996) (per curiam) (citing Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978)). Parties must file a notice of appeal within thirty days after judgment or the order appealed from is entered. Fed. R.App. P. 4(a)(1)(A). However, a district court retains discretion to determine whether plaintiff has shown “excusable neglect” or “good cause” sufficient to warrant the filing of a notice of appeal after the prescribed deadline has passed. See Fed. R.App. P. 4(a)(5)(A) (“The district court may extend the time to file a notice" }, { "docid": "1077570", "title": "", "text": "neglect. See, e.g., Britt v. Whitmire, 956 F.2d 509, 511 (5th Cir.1992); Baker, 879 F.2d at 1399-1400; In re GF Corp., 127 B.R. at 383 (and cases cited therein); In re Bahre, 30 B.R. at 369. A “run-of-the-mill oversight” or omission is not extraordinary or unique. Gooch, 493 F.2d at 370. Moreover, “the filing of a notice of appeal does not require much thought or time and ... the fact that an attorney [is] ‘busy’ on another matter [does] not constitute excusable neglect.” Marsh v. Richardson, 873 F.2d 129, 131 (6th Cir.1989) (citing Pinero-Schroeder v. Federal National Mortgage Ass’n, 574 F.2d 1117, 1118 (1st Cir.1978)). The other stated reason is that the trustee was waiting for the defendants to designate the record on appeal so that the need for a cross appeal could be assessed. This reason utterly fails to reach the level of excusable neglect. First, nothing prevented the trustee from filing a motion for extension within his original appeal period. Indecision over whether to appeal does not interfere with filing a timely motion to extend, nor does it constitute a unique circumstance. In re O’Connor, 85 B.R. at 592. Generally, excusable neglect requires that the person charged with the duty to act faces circumstances which are beyond his reasonable control, Matter of Dayton Circuit Courts No. 2, 85 B.R. at 54; or reasonable anticipation. In re Bahre, 30 B.R. at 368. Waiting on the appellant to designate the record is not a unique or extraordinary circumstance for a cross appellant. Since an appellant has ten days after filing the notice of appeal to file a designation of the record on appeal, Bankr.Rule 8006, it is very likely that in most cases the appellant will not file the designation in time for another party to consider whether a cross appeal was necessary. Where the record, which in the case sub judice is only the trustee’s motion, simply fails to sustain a finding of excusable neglect, the reviewing court has no choice but to find an abuse of discretion in the lower court holding otherwise. See Gooch, 493 F.2d at" }, { "docid": "22862731", "title": "", "text": "the legal process is not “intentional” under our default cases, and is therefore not neces sarily — although it certainly may be, once the equitable factors are considered — culpable or inexcusable. In Gregorian v. Izvestia, for example, the defendants failed to respond to a lawsuit because they believed that the court lacked subject matter jurisdiction over them under the Foreign Sovereign Immunities Act. Although the defendants did not dispute that they received notice of the lawsuit, we found the case “distinguishable from those cases in which we have found a party’s conduct to be culpable.” 871 F.2d 1515, 1522 (9th Cir.1989). We explained that “culpability” involves “not simply nonappearance following receipt of notice of the action, but rather conduct which hindered judicial proceedings as to which subject matter jurisdiction was unchallenged.” Id. at 1525 (distinguishing Pena, supra, 770 F.2d 811). Similarly, in the recent Bateman case, an attorney left the country for a family emergency, missing the deadline to answer a motion for summary judgment while he was away, and did not contact the district court or opposing counsel until 16 days after his return because it took that long for him to recover from his trip and sort through his mail. Summary judgment was granted in the interim as unopposed. Applying the Pioneer Investment factors, we noted that his reasons for the delay were weak, but not the result of “deviousness or willfulness,” id., and, applying the remaining Pioneer Investment factors, we concluded that because the lawyer acted in good faith, without prejudice to the opposing party, and with minimal delay or impact on the judicial proceedings, his neglect was excusable. Id. at 1225. Noteworthy for present purposes is that the fact that the attorney knew that the summary judgment motion response would be due while he was away, yet did nothing about obtaining an extension, did not preclude a finding of “excusable neglect.” See id. at 1223. As a final example, in Falk v. Allen, the default judgment case in this court most similar to this one, we vacated a default judgment entered against an individual defendant," }, { "docid": "22291299", "title": "", "text": "outweighs the interest in finality. Id. Ramseur’s notice of appeal was mailed on April 10th, a full six days before the 30-day time period expired. Yet it was not “filed” until April 23rd, thirteen days later. Ramseur asserts that this delay was inexplicable and thus qualifies as excusable neglect. We agree. Because his notice of appeal was filed only seven days late, granting Ramseur an extension does not raise overall fairness concerns. More importantly, the delay was not attributable to counsel’s bad faith. Rather, Ramseur’s notice of appeal was untimely despite counsel’s diligent efforts at compliance. By mailing the notice of appeal on April 10th, Ramseur’s counsel reasonably believed that it would be filed within the 30-day time period. Further, counsel, upon learning of the delay, acted expeditiously to cure it, by promptly moving for an extension under Rule 4(a)(5). In Consolidated Freightways, the notice of appeal was prepared one day before the 30-day time period expired. Because counsel intended to hand-deliver the notice of appeal, we noted that, in the normal course of events, it would have been timely filed. See 827 F.2d at 917 n. 1. In view of counsel’s due diligence, we held that in the factual context of that case, counsel’s inadvertent misdirection of the notice of appeal constituted excusable neglect under Fed.R. App.P. 4(a)(5). Likewise, other cases have found untimely notices of appeal to be valid by reason of excusable neglect when they are mailed at such a time and in such a manner that, under normal circumstances, the district court would have received them in a timely fashion. See, e.g., Scarpa v. Murphy, 782 F.2d 300 (1st Cir.1986) (notice of appeal, which was mailed five days before expiration of 30-day period but was filed two days late, held to be valid due to excusable neglect/good cause because five days normally was sufficient for the three-mile delivery); Wright v. Deyton, 757 F.2d 1253, 1255-56 (11th Cir.1985) (“[T]he district court should determine when the document was mailed and whether, in ordinary course of events, the clerk would have received the letter by the applicable filing deadline.”);" }, { "docid": "1077569", "title": "", "text": "bankruptcy court had for its decision. In this situation, the court could construe the minute sheet as granting the trustee’s motion for the reasons stated in the motion. See Ooley, 961 F.2d at 1306. In the alternative, the court could remand the case for a written order that would set forth the bankruptcy court’s reasons. However, a remand serves no useful or logical purpose if the movant has failed to even allege circumstances warranting an extension. See Baker v. Raulie, 879 F.2d at 1399. Under either alternative, this court must decide whether the trustee’s motion offers circumstances that could qualify as excusable neglect. The trustee’s motion fails to even mention the excusable neglect standard and offers two reasons which fall far short of being unique or extraordinary. The trustee first alleges that his counsel’s “ability to keep abreast of this case” was “inhibited” by the taking of depositions in other cases. (Bkcy.Adv. No. 88-0097 Dk. 57). Consistently, courts have held that an attorney’s preoccupation or involvement in other cases or litigation does not constitute excusable neglect. See, e.g., Britt v. Whitmire, 956 F.2d 509, 511 (5th Cir.1992); Baker, 879 F.2d at 1399-1400; In re GF Corp., 127 B.R. at 383 (and cases cited therein); In re Bahre, 30 B.R. at 369. A “run-of-the-mill oversight” or omission is not extraordinary or unique. Gooch, 493 F.2d at 370. Moreover, “the filing of a notice of appeal does not require much thought or time and ... the fact that an attorney [is] ‘busy’ on another matter [does] not constitute excusable neglect.” Marsh v. Richardson, 873 F.2d 129, 131 (6th Cir.1989) (citing Pinero-Schroeder v. Federal National Mortgage Ass’n, 574 F.2d 1117, 1118 (1st Cir.1978)). The other stated reason is that the trustee was waiting for the defendants to designate the record on appeal so that the need for a cross appeal could be assessed. This reason utterly fails to reach the level of excusable neglect. First, nothing prevented the trustee from filing a motion for extension within his original appeal period. Indecision over whether to appeal does not interfere with filing a timely motion" }, { "docid": "22287562", "title": "", "text": "set aside a default judgment under 60(b)(1), the courts generally look at three factors: (1) the extent of prejudice to the plaintiff; (2) the merits of the defendant’s asserted defense; and (3) the culpability of defendant’s conduct. United Coin Meter v. Seaboard Coastline R.R., 705 F.2d 839, 845 (6th Cir.1983); Feliciano v. Reliant Tooling Co., 691 F.2d 653, 656 (3d Cir.1982). In the present case Hibernia alleges no prejudice except that which may result from further delay in collecting its judgment. However, the mere possibility of prejudice from delay, which is inherent in every case, is insufficient to require denial of a 60(b)(1) motion. United Coin, supra, 705 F.2d at 845. Granados alleges that following the default by the maker of the note in question (Administración Central Sociedad Anónima), Hibernia, without explanation or excuse, delayed for two years taking action to secure payment of the note. He alleges that but for this delay Hibernia could have obtained payment from the maker. In the alternative, Granados, as guarantor, could have secured reimbursement from the maker. He claims that this failure to act had the effect of discharging him from his obligations as an uncompensated guarantor. The final issue is that of Granados’s culpability. There is certainly no evidence that his untimely filing was willful. See United Coin, supra, 705 F.2d at 845. Furthermore, while Granados’s counsel should have known and followed the local rules, the circumstances of this case combined to create a much more serious consequence for Field’s ignorance of Local Rule 3.7 than might have otherwise occurred. Specifically, we note the fact that Field received Hibernia’s motion for summary judgment just before the Christmas holidays and that the district judge’s notice of the filing deadline did not reach Field until the day after the deadline had passed. Under other circumstances, Field may have received the notice in time to file the responsive pleadings, which he had already prepared, before the deadline. At any rate, once Field discovered that the deadline had passed, he moved with all possible speed to file an unexecuted set of pleadings and to secure leave" }, { "docid": "17628327", "title": "", "text": "approving this settlement. Of the Girsh factors, eight weigh in favor of settlement approval, and only one— the capacity of GEICO to withstand a greater judgment — is neutral. But in any class action against a large corporation, the defendant entity is likely to be able to withstand a more substantial judgment, and, against the weight of the remaining factors, this fact alone does not undermine the reasonableness of the instant settlement. Accordingly, the Court approves the proposed class action settlement as fair, adequate, and reasonable. C. Application to Permit Late Claims The Court must determine whether to allow four claims received from class members within three days of the September 21, 2009 deadline (claims of Weiner, Jefferies, Calavano, and Palacio), and whether to enlarge the claim period for 12 individuals who did not receive the second notice until after it was mailed to them on September 18, a few days before the filing deadline (including two class members — Goka and Pavón — who have spoken with Class Counsel within the past week). The claims of Weiner and Jefferies were postmarked on September 21, Palacio’s claim was postmarked September 23, and Calavano’s claim was not postmarked because it originally lacked a postage stamp, was returned to Calavano, was re-sent with proper postage, and received by September 24. Calavano’s claim was very probably originally mailed before September 21. Class members Goka and Pavón spoke with Class Counsel on September 23 and 24 respectively, indicating they had just received the notice and they intended to present their claims even though the deadline elapsed. Class Counsel urged the acceptance of the late filed claims and an extension of the deadline for the group of 12 class members who received the September 18 notice, while Defendants oppose this relief citing prejudice to the Defendants and lack of excusable neglect. The Court’s equitable determination whether to permit late claims turns upon consideration of four factors for each claimant or group, namely: (1) the danger of prejudice to the other class members or the defendants, (2) the length of the delay and its effect on" }, { "docid": "8559194", "title": "", "text": "24th, Christmas Eve, and which arrived at the district court clerk’s office on December 31st. On March 13th, 1986, the district court denied AAS’s motion to extend time. In his order, Judge Grady suggested that while he would likely have granted the motion initially, the inconsistency between the affidavits originally supporting AAS’s motion and later, clarifying affidavits filed by AAS left the court with the impression that AAS had had sufficient notice of the court’s judgment to negate any possible claim of “excusable neglect.” In relevant part, the district court found: Defendant missed the appeal deadline by only four days, and this court would ordinarily take an indulgent view of any reasonable excuse, given the fact that the notice was mailed four days before the deadline. But defendant, through its attorney, Mr. Herescu, has misrepresented the facts. Whether the misrepresentation was intentional or not, the fact is that Mr. Herescu’s initial affidavit of January 23, 1986, gave no hint of the fact that, as conceded by his later affidavit, he knew of the judgment as early as December 5. Assuming that Mr. Herescu’s status as defendant’s attorney did not crystallize until December 18, so that his knowledge acquired on December 5 cannot be attributed to defendant until December 18 when he actually informed defendant in a telephone conversation that a judgment had been entered on November 27, still, it is clear that the defendant knew of the judgment no later than December 18. It had nine days from that date to get its notice of appeal on file. It had Mr. Herescu in New York and local counsel in Chicago. Everyone had access to telephones, and there was no need to rely on the mail. A notice of appeal is a simple document, as is illustrated by the five line notice of appeal that was filed on December 31 ... We see no basis for finding that the failure to meet the December 27 deadline was because of excusable neglect or that there is good cause for extending the time for filing. II. The timely filing of a notice of" }, { "docid": "22280677", "title": "", "text": "Co., 663 F.2d 348 (1st Cir.1981) (per curiam). That his attorney mailed his notice of appeal within thirty days of the August 3 judgment does not help Baker. Except in unique circumstances not present here, the notice is “filed” within the meaning of Rule 4(a)(1) upon receipt by the district court clerk, not at the time of mailing. Houston v. Lack, Warden, — U.S. -, 108 S.Ct. 2379, 2384-85, 101 L.Ed.2d 245 (1988); Pryor v. Marshall, 711 F.2d 63, 65 (6th Cir.1983). It follows that Baker filed his notice on September 6, a day too late, rather than September 2, the last day of Rule 4(a)(l)’s 30-day appeal period. We view the proximity of Labor Day to Baker’s notice due date as immaterial. The notice of appeal was due at the end of Friday, before the start of the holiday weekend. Even if the holiday delayed the district court’s receipt of the notice, it still would have been late had there been no holiday. Moreover, as the First Circuit observed in identical circumstances, “[t]he issue here is date of filing of the [njotice, not progress of the mails.” Airline Pilots etc. v. Executive Airlines, Inc., 569 F.2d 1174, 1175 (1st Cir.1978) (per curiam). In sum, Baker did not comply with either the letter or the spirit of Rule 4(a)(1), and we regard his notice of appeal as untimely filed. IY. Extension of Time to File Notice We may exercise jurisdiction of this appeal if the district court properly granted Baker’s motion to extend the time for filing his notice of appeal under Fed.R.App.P. 4(a)(5). Our standard of review of an extension granted is whether the district court abused its discretion. Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir.1989). We believe the district court abused its discretion both procedurally and substantively. First of all, the district court should not have granted Baker’s Rule 4(a)(5) motion by notation without providing Raulie a meaningful opportunity to respond. We recently wrote that “[i]t is well settled that leave to file an untimely notice of appeal is to be granted only in unique or" }, { "docid": "17870469", "title": "", "text": "in the mail. Rule 6(e), he correctly observed, applies to periods triggered by service, while the time to move for new trial commences with the entry of judgment. Because of its tardiness, Midwest’s motion for new trial failed to postpone the start of the thirty-day period for filing a notice of appeal. The Magistrate Judge denied the motion after the last day of the thirty-day window (November 16,1997). Consequently, on December 9, 1997, Midwest asked for additional time to file a notice of appeal and for expedited consideration of its request. The next day, the Magistrate Judge granted the motion and gave Midwest ten days to appeal. This disposition rested on a finding that Midwest’s failure to file a timely notice of appeal was due to excusable neglect. The Magistrate Judge cited the following circumstances in support of his excusable neglect determination: (1) Midwest’s dereliction arose from the belief of its attorney that the receipt of the amended judgment in the mail had the effect of adding three days to the period for filing a motion for new trial and; (2) Williams suffered no undue prejudice from a grant of more time to appeal because an even longer delay would have occurred if the merits of the motion for new trial had required consideration. He also suggested that he considered the mistake to have been in good faith. Specifically, he noted that Midwest’s counsel had submitted a sworn declaration that explained the reason for the failure to file a timely appeal and charaeter-ized our opinion in United States v. Clark, 51 F.3d 42 (5th Cir.1995), as “indicat[ing] that a good faith misinterpretation of the three-day extension rule by counsel is exactly the type of thing that constitutes ‘excusable neglect.’ ” Midwest filed a notice of appeal before the new deadline. II Federal Rule of Appellate Procedure 4(a)(5) permits the district court to extend the deadline for filing a notice of appeal “upon a showing of excusable neglect or good cause.” Fed. R.App. R. 4(a)(5). When a party moves for more time after the deadline for appealing has passed, it must" }, { "docid": "4857532", "title": "", "text": "2011 Order in this case states that \"Motion for Summary Judgment ... is GRANTED” and thus beyond any question qualifies as a \"judgment” under Rule 58. . “Although Pioneer interpreted excusable neglect in the context of a bankruptcy rule, every circuit court that has considered the question has extended Pioneer to determinations of excusable neglect under Rule 4.... While not explicitly extending Pioneer to such determinations, this Circuit has cited Pioneer in reviewing motions for extensions of time to file a notice of appeal.” Webster v. Pacesetter, Inc., 270 F.Supp.2d 9, 12 n. 6 (D.D.C.2003) (citations omitted); see also Marx v. Loral Corp., 87 F.3d 1049, 1054 (9th Cir.1996). . The fact that plaintiff contacted Khaing on January 4, but that Khaing’s professional obligations prevented them from scheduling an initial consultation until January 10 (PL's Mot. at 2-3; Defs. Opp'n at 2) does not counsel against a finding of excusable neglect. Attempts to contact counsel before the running of the deadline would, if anything, indicate good faith by plaintiff. Though a movant’s good faith does not always support a finding of excusable neglect, it is one of the four Pioneer Investment Services factors that favor extending the filing deadline. . That Khaing erroneously believed judgment had not been entered and that the Rule 4 filing deadline had therefore not lapsed is of no moment — Khaing’s involvement in the case only began the night of January 10, one day after the filing period had run. (See PL’s Mot. at 3.) The notice of appeal was filed the next morning, which was, in the Court's determination, as soon as practicably possible. (See id.) Moreover, Khaing's inability to accept plaintiff's case until six days after he initially called her is not the kind of inexcusable attorney error contemplated by the case law. See, e.g., Webster, 270 F.Supp.2d at 14 (delay caused by attorney misinterpretation of legal rules is not excusable)." } ]

[ { "docid": "10668401", "title": "", "text": "case than is a state court. Cases such as Andersen v. Bingham and Garfield Railroad Company, 169 F.2d 328 (10 Cir. 1948), denying jurisdiction because the federal regulation does not authorize an affirmative right to sue are not controlling. The main problem is one of amount in controversy. It is admitted that the specific amount due and owing the Plaintiff is substantially less than $10,000. From the standpoint of the Plaintiff as an individual, therefore, only a few dollars, at the most the interest on the funds allegedly wrongfully required to be deposited in account, less than $100 a year, are involved. On the other hand, if Defendant is required to cease and desist from collecting the sums of money allegedly collected in violation of 11 C.F.R. 545.6-11 for its whole operation, many times $10,000 will be affected by the Court’s Order. Because the Defendant is a federal savings and loan association regulated by a federal agency and the interpretation of a provision of the regulations of that agency is at the heart of this action, it is not possible to grant the relief requested in this case affecting only the Plaintiff and the Defendant. Any such affirmative relief must directly affect all other escrow accounts. Thus from the standpoint of the Defendant, if he is forced to comply with the demands of the Plaintiff and to make this practice consistent for all borrowers, many dollars are involved, many times the minimum required to give this Court jurisdiction. It is not essential, as requested by the Plaintiff, to construe this action as a class action to reach this conclusion. The compliance by the Defendant with the relief requested by the Plaintiff as an individual will cause “the value of the object” to the Defendant to exceed $10,000, because it will be forced to act consistently in all of its escrow accounts. In no way should this Opinion be construed as an indication that this action is or is not a class action. There is no definitive determination by the Supreme Court as to the viewpoint from which the Court should" } ]

[ { "docid": "1892249", "title": "", "text": "allow a plaintiff who has no claim for the requisite compensatory damages merely to request injunctive relief, assign to that request a value measured in terms of defendant’s compliance, and then litigate in the federal courts. If Zahn and Snyder mean anything at all, they stand for the proposition that federal courts should take a strict view in interpreting their diversity jurisdiction. Such an approach precludes the application of the defendant’s view test and it forecloses, in the instant case, defendant’s access to this Court. Plaintiffs’ Reply at 14-15. This court will not apply the defendant’s view test to this diversity action which seeks both damages and injunctive relief. 3. Aggregation of Attorneys’ Fees Defendant further seeks to avoid the no aggregation rule by asking the court to focus on the fact that plaintiffs have also requested attorneys’ fees that they argue will be sure to amount to more than $10,-000. Although they cite support for the proposition that attorneys’ fees can be considered as part of the jurisdictional amount, see Clark v. National Travelers Life Insurance Co., 518 F.2d 1167 (6th Cir.1975), they cite to no case in which attorneys’ fees were aggregated in a class action so that the jurisdictional amount could be met. Plaintiffs, however, point to authority for the proposition that in class actions one cannot aggregate the amount of attorneys’ fees in order to meet the jurisdictional amount. They rely on Goldberg v. CPC International, Inc., 678 F.2d 1365 (9th Cir.1982), cert. denied, 459 U.S. 945, 103 S.Ct. 259, 74 L.Ed.2d 202 (1982), in which the Ninth Circuit addressed this point directly. In Goldberg, as in this case, defendants in a class action removed the case to the federal district court claiming diversity jurisdiction. “Defendants (CPC) alleged that the $10,000.00 amount in controversy requirement of 28 U.S.C. § 1332 was satisfied, despite the small individual claims of the class members, because plaintiffs’ potential attorneys’ fees would exceed that amount.... The issue is whether the jurisdictional amount in controversy is satisfied. We find that it is not.” Id. at 1366-67. In Goldberg the circuit court expressly" }, { "docid": "2447200", "title": "", "text": "case is readily distinguishable from the cases cited. If plaintiffs were to succeed on the merits, they would do so because a court found that they were entitled to benefits under the contract construed to eliminate the alleged ambiguity or to comply with the public policy of Tennessee. If it happened that they submitted further claims for reimbursement sometime in the future, defendant would be collaterally estopped from raising the issue of coverage vel non. But the collateral estoppel effect, even if measurable, cannot be relied upon to augment the value of the right in dispute in this suit. Beaman v. Pacific Mutual Life Insurance Co., 369 F.2d 653 (4th Cir. 1966); Elliott v. Empire Natural Gas Co., 4 F.2d 493 (8th Cir. 1925); Berlin v. Travelers Ins. Co. of Hartford, Conn., 18 F.Supp. 126 (D.Md.1937). As a result, the Court must conclude that defendant’s allegation of the required amount in controversy is without merit, and diversity jurisdiction is absent. Finally, defendant relies on the provisions of the Employee Retirement Income Security Act (ERISA) and the grant of federal court jurisdiction contained therein. Title 29, U.S.C., § 1132 permits a civil action to be brought in federal court by a participant or beneficiary of an employee welfare plan to recover benefits due him under the terms of the plan, to enforce his rights under its terms, or to clarify his right to future benefits. § 1132(a)(1)(B). Subsection (e)(1) makes this grant of jurisdiction concurrent with that of state courts of competent jurisdiction. Defendant argues that the claims presented by plaintiffs fall within the scope of this jurisdictional grant and that the action could, therefore, have originally been brought in federal court. There is no doubt that an employee group health insurance plan of the type described in the appendix to the complaint falls within the definition of an “employee benefit plan”. § 1002. The crux of defendant’s argument is that because the complaint alleges defendant is contractually bound to offer reimbursement of medical expenses under that plan, it is subject to suit under § 1132. In enacting ERISA, Congress was" }, { "docid": "23209564", "title": "", "text": "The named plaintiff sought, on behalf of a class, actual damages of $11.00 per class member, punitive damages, and an order “enjoin[ing] Ford from continuing to sell the trailering special packages without a wiring connector kit.” Id. at 788. Ford removed to federal district court based on diversity. It argued that the plaintiffs complaint satisfied the amount-in-controversy requirement because the cost to Ford of complying with the injunction would exceed $10,000 (the jurisdictional amount at that time). Snow recognized that in some non-class actions we had calculated the value of in-junctive relief for purposes of amount in controversy by examining the cost of the injunction to the defendant. See id. at 788-89 (citing Ridder Bros., Inc. v. Blethen, 142 F.2d 395, 398-99 (9th Cir.1944)). We observed, however, that this defendant’s-viewpoint approach could not be applied to class actions without undermining Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), in which the Supreme Court had held that class action plaintiffs cannot aggregate the amounts of their “separate and distinct” claims in order to meet the amount-in-controversy requirement. We explained that in class actions, use of the defendant’s-viewpoint approach was “basically the same as aggregation.” Snow, 561 F.2d at 790. Therefore, in class actions asserting the “separate and distinct” claims of class members, as opposed to claims that are the “common and undivided” right of the class, the defendant’s-viewpoint approach was inappropriate. Although the injunction sought in Snoiv would have affected thousands of future sales and would have cost Ford more than $10,000, we held that where the equitable relief sought is but a means through which the individual claims may be satisfied, the ban on aggregation applies with equal force to the equitable as well as the monetary relief. ... Given Snyder, the proper focus ... is not influenced by the type of relief requested, but rather continues to depend upon the nature and value of the right asserted. The right asserted by plaintiffs is the right of individual future consumers to be protected from Ford’s allegedly deceptive advertising which is said to injure them in" }, { "docid": "15934688", "title": "", "text": "as many as 1200 plaintiffs, and request the following relief: (1) a preliminary and permanent injunction restraining the defendants from violating Article 6C of the agreement; (2) compensatory damages; (3) an order directing the defendants to reimburse all monies charged for food under the agreement in excess of cost and; (4) punitive damages in the amount of $25 for each plaintiff and every member of the class they represent. The Law The court is not unmindful of the peculiar needs and problems with which migrant farm workers are faced. However, viewed individually, and in proper perspective, the claim of each individual plaintiff falls well below the jurisdictional amount requirement of 28 U.S.C. §§ 1331 and 1332. Those sections require that the matter in controversy exceed “the sum or value of $10,000 exclusive of interests and costs. Moreover, such claims may not be aggregated in order to meet the jurisdictional amount requirement. The circumstances under which claims may be aggregated are set forth in Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). There the issue presented was whether, in view of the 1966 amendment to Rule 23 of the Federal Rules of Civil Procedure, separate and distinct claims asserted by various claimants in a class action should be added together to meet the required jurisdictional amount. In reaffirming the traditional interpretation of the statutory phrase “amount in controversy,” the Court held aggregation to be impermissible except: “(1) in cases in which a single plaintiff seeks to aggregate two or more of his own claims against a single defendant and (2) in cases in which two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest.” 394 U.S. at 335, 89 S.Ct. at 1056. The first criterion set forth in Snyder is clearly inapplicable in the present case, and the Court is not persuaded by the plantiffs’ argument that they have united to enforce a single right or title in which they have a common or undivided interest. The fact that the rights of each plaintiff are" }, { "docid": "453153", "title": "", "text": "of certain funds without his knowledge. For reasons disputed by the parties, no deposit has ever been paid to the plaintiff and no settlement ever took place. The issue before the Court is a narrow one. Because the defendant never purchased the bargained for the real estate, the plaintiff claims that the defendant breached the sales agreement. Under the terms of the contract, plaintiff elects the liquidated remedy of forfeiture of Barnes’ yet unpaid $10,000 deposit. This is the substance of Count I of the plaintiff’s complaint. Count II requests the Court to award punitive damages in the amount of $100,000. The plaintiff claims that punitive damages are appropriate in this contract action because the defendant’s alleged breach of contract constitutes a willful tort. II. DISCUSSION A. Jurisdiction The plaintiff’s complaint grounds jurisdiction on the diversity statute, which states, in relevant part, (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between — (1) citizens of different States____ 28 U.S.C. § 1332 (emphasis supplied). Thus, to satisfy diversity jurisdiction, the plaintiff must demonstrate geographic diversity of the parties and must plead damages satisfying the amount in controversy requirement. Geographic diversity is uncontested. However, the defendant contests the plaintiff’s allegation that more than $10,000 is at stake in this lawsuit. On its face, the plaintiff’s complaint appears to satisfy the amount in controversy mandated by section 1332. Plaintiff’s Count I seeks liquidated damages in the amount of exactly $10,000. Count II seeks punitive damages in the amount of $100,000. In addition, the plaintiff requests interest due, the costs of bringing this lawsuit, and attorney fees. The defendant contends that assuming, arguendo, the $10,000 in liquidated damages is recoverable, this amount, in and of itself, does not confer jurisdiction on the Court. Section 1332 requires the amount in controversy to “exceed[s] the sum or value of $10,000____” Id. Moreover, by its own terms the amount in controversy must be “exclusive of interest and costs.” Id. Thus, standing alone, the plaintiff’s" }, { "docid": "21044991", "title": "", "text": "Cir.1993). In the absence of a common and undivided interest claimed by all' plaintiffs, their claims cannot be aggregated. (B) DECLARATORY AND INJUNCTIVE RELIEF. Recognizing that the individual plaintiffs’ claims cannot be aggregated to reach the requisite amount, the defendants contend that I should determine the amount in controversy from each defendant’s perspective because it will cost each defendant in excess of $50,000 to comply with the injunctive and declaratory relief requested by plaintiffs. The Eleventh Circuit has apparently not had an opportunity to deal with this specific issue, but Defendants rely upon several reported decisions that have viewed the amount in controversy from the defendant’s viewpoint. However, only two of those reported decisions involve class actions, while the rest were not subject to the rule against aggregation. Neither of the two class action cases is similar to the present case. Only one, Committee for G.I. Rights v. Callaway, 518 F.2d 466, 472 (D.C.Cir.1975), is a circuit decision. It involved the old version of Section 1331(a), the federal question jurisdictional statute, which then also contained a jurisdictional amount. It found that each member of the plaintiff class actually met the jurisdictional amount, but in dictum, agreed that the jurisdictional amount “is also satisfied with respect to all of the plaintiffs because of the costs that the [defendant] would incur ...” 518 F.2d at 472. It did not attempt to analyze application of “either party’s perspective” in a class action context. Similarly, in the second decision involving a class action relied upon by the defendants, Martin v. Granite City Steel Corp., 596 F.Supp. 293 (S.D.Ill.1984), after finding that the class plaintiffs’ claims for punitive damages and compensatory damages seemed to exceed the jurisdictional amount for each plaintiff (under Zahn), the Court measured the plaintiffs’ claim for equitable relief under the “either viewpoint rule,” and included, a pro rata share of that amount for each plaintiff. Alternatively, it found that the plaintiffs were seeking to enforce “common and undivided interests,” which allowed aggregation. Thus, this case provides no support to the defendants’ contention here. Inclusion for each plaintiff of a pro rata" }, { "docid": "9913973", "title": "", "text": "as a federal defense that is insufficient to create jurisdiction. Having determined that no federal issue is necessarily raised by Plaintiffs Complaint, the Court need not consider the additional requirements for invoking federal question jurisdiction under Gunn. Because no federal issue appears on the face of Plaintiffs Complaint and Plaintiffs claims do not necessarily raise any federal issues, the Court does not have federal question jurisdiction over this action. B. Diversity Jurisdiction Defendant also contends that this Court has diversity jurisdiction over this action because the parties are of diverse citizenship and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). Plaintiff does not dispute that the parties are diverse, but contends that Defendant has not demonstrated an amount in controversy exceeding $75,000. The Court agrees. Defendant argues that the amount in controversy requirement is satisfied based on (1) the cost to Defendant of complying with the requested injunctive relief and (2) the attorneys’ fees Plaintiff requests in its Complaint. For the reasons set forth below, neither are sufficient to demonstrate that $75,000 is in controversy. 1. The Cost of Complying with, the Requested Injunction The Court first finds that the purported cost of complying with the injunc-tive relief Plaintiff requests is not sufficient to satisfy the amount in controversy requirement. The Court begins by noting that it rejects Plaintiffs argument, that Defendant’s “alleged cost of compliance ... is no longer considered a proper measure of jurisdictional minimum in district courts in this Circuit.” Pl.’s Mot. at 8. Under binding precedent, the cost-to-defendant test is in fact one appropriate method of measuring the value of. injunc-tive relief in this Circuit. In Tatum v. Laird the Court of Appeals for the District of Columbia Circuit held that “the test for determining the amount in controversy is the pecuniary result to either party which the judgment would directly produce,” and determined that the amount in controversy requirement was satisfied in- that case because “the cost to the [defendant] of complying with such a [injunction] might well exceed $10,000.” 444 F.2d 947, 951, n.6 (D.C. Cir. 1971), rev'd on other grounds, 408" }, { "docid": "13698403", "title": "", "text": "of jurisdiction is reversed. Since 5 U.S.C. § 8340 is constitutional, the relief requested by plaintiffs is denied. The district court is directed to enter judgment for defendants. . Plaintiffs requested declaratory relief as well, though the Court of Claims could have awarded the monetary relief with “no necessity for a declaratory judgment, for plaintiffs would have won their Constitutional argument in order to succeed.” 596 F.2d 252, 254 (7th Cir. 1979), citing Cook v. Arentzen, 582 F.2d 870, 878 (4th Cir. 1978). . Plaintiffs do not allege any personal wrongdoing on the part of the federal officers, and the new complaint does not request damages from them in their individual capacities. . Plaintiffs’ second complaint again alleges that the matter in controversy exceeds $10,000, thus precluding district court jurisdiction under the Tucker Act, 28 U.S.C. § 1346(a)(2). . Accepting this proposition for jurisdictional purposes, of course, does not affect determination of the merits. Unless the allegations of the complaint are “so transparently insubstantial or frivolous as to afford no possible basis for jurisdiction,” the court will adopt the averments at face value. Carter v. Seamans, 411 F.2d 767, 770 (5th Cir. 1969). . Plaintiffs argue that the intolerable burden exception has never been applied to deny jurisdiction to hear a suit based on Larson’s second “unconstitutionality” exception. Though not crucial to our holding, we take note of De Lao v. Califano, 560 F.2d 1384 (9th Cir. 1977), in which the plaintiffs alleged that the Secretary of Health, Education and Welfare acted uncon stitutionally in withholding benefits prior to a hearing. The Ninth Circuit held that the relief sought would work an intolerable burden on the government. Id. at 1391. . This case does not require us to decide whether sovereign immunity would bar a declaratory judgment that entitled plaintiffs to affirmative relief from the government. Similarly, because we hold against plaintiffs on the merits, there is no need to decide if the mandatory injunctive relief requested here is the type of affirmative relief the intolerable burden exception is meant to preclude. Compare Schlafly v. Volpe, 495 F.2d 273 (7th" }, { "docid": "8984437", "title": "", "text": "Snyder’s proscription against aggregation for both equitable and injunctive relief in a suit filed under California’s Consumers Legal Remedies Act, Cal. Civ.Code §§ 1750, et seq.). Hence, the cases cited by AOL do not “conclusive ly establish that the statutory and actual damages” may be aggregated in a private attorney general action. Def.’s Opp. at 18. Indeed, and to the contrary, case law from the Supreme Court, from this district, and from California federal courts establishes clearly that actual and statutory damages should not be aggregated in representative actions like this one. 2. Injunctive Relief Along with damages, the complaint seeks “[a]n injunction enjoining Defendant AOL from continuing the unlawful trade practices described herein.” Compl. at 6. Because the complaint seeks an injunctive, AOL argues that the amount in controversy will exceed $75,000 based on its costs of complying with the requested injunctive relief. In response, Breakman disputes that a defendant’s cost of compliance with an injunction is an appropriate consideration in determining the amount in controversy in a diversity action. Breakman also argues that AOL misconstrues the injunc-tive relief that is requested, and that AOL’s actual costs of compliance will not meet the jurisdictional requirement. In a 1975 D.C. Circuit case brought pursuant to federal question jurisdiction, the court suggested that a defendant’s cost of compliance may satisfy the jurisdictional amount that was required at that time. See Committee for GI Rights v. Callaway, 518 F.2d 466 (D.C.Cir.1975). The plaintiffs claimed that certain provisions of the Army’s drug abuse prevention program were unconstitutional, and they sought in-junctive relief. Id. at 467. In determining the amount in controversy, the D.C. Circuit determined that the jurisdictional amount was satisfied and “that the cost to the defendants might well exceed $10,000.” Id. at 473. In 1980, however, the D.C. Circuit noted that other jurisdictions had determined that “the cost-to-defendant rule for computing jurisdictional amount” was “an impermissible way of circumventing the Zahn rule against aggregation of claims.” Fenster v. Schneider, 636 F.2d 765, 767 (D.C.Cir.1980) (citing Snow, 561 F.2d 787). Despite the obvious tension between the cost-to-defendant rule and the non-aggregation principle," }, { "docid": "8984438", "title": "", "text": "AOL misconstrues the injunc-tive relief that is requested, and that AOL’s actual costs of compliance will not meet the jurisdictional requirement. In a 1975 D.C. Circuit case brought pursuant to federal question jurisdiction, the court suggested that a defendant’s cost of compliance may satisfy the jurisdictional amount that was required at that time. See Committee for GI Rights v. Callaway, 518 F.2d 466 (D.C.Cir.1975). The plaintiffs claimed that certain provisions of the Army’s drug abuse prevention program were unconstitutional, and they sought in-junctive relief. Id. at 467. In determining the amount in controversy, the D.C. Circuit determined that the jurisdictional amount was satisfied and “that the cost to the defendants might well exceed $10,000.” Id. at 473. In 1980, however, the D.C. Circuit noted that other jurisdictions had determined that “the cost-to-defendant rule for computing jurisdictional amount” was “an impermissible way of circumventing the Zahn rule against aggregation of claims.” Fenster v. Schneider, 636 F.2d 765, 767 (D.C.Cir.1980) (citing Snow, 561 F.2d 787). Despite the obvious tension between the cost-to-defendant rule and the non-aggregation principle, the court did not find it necessary to resolve the conflict presented by the suggestion made in Committee for GI Rights. In National Organization for Women v. Mutual of Omaha Ins. Co., 612 F.Supp. 100, 108 (D.D.C.1985), the court directly addressed the issue that is presented here. The court ultimately concluded that applying the cost-to-defendant test in an action seeking both injunctive relief and damages “would undermine the holdings of Zahn and Snyder.” Id. at 108. The court noted that a contrary conclusion “would allow a plaintiff who has no claim for the requisite compensatory damages merely to request injunctive relief, assign to that request a value measured in terms of defendant’s compliance, and then litigate in the federal courts.” Id. Finding that outcome to be contrary to the longstanding directive that federal jurisdiction should be strictly interpreted, the court declined to apply the cost-to-defendant test to the diversity action before it. For the same reasons, this Court agrees that the cost-to-defendant test is inapplicable to the current diversity action. That result is, moreover, consistent" }, { "docid": "21044990", "title": "", "text": "the Fifth and Seventh Circuits have correctly construed the effect of Section 1367 on Zahn, in Stromberg Metal Works, Inc. v. Press Mechanical, Inc., 77 F.3d 928 (7th Cir.1996), and In re Abbott Laboratories, 51 F.3d 524 (5th Cir.1995). I am also of the opinion that a number of district court decisions to the contrary have misconstrued the effect of Section 1367. As the law now stands, it is my determination that all putative class members may sue together, as a class in federal court, as long as at least one class representative meets the jurisdictional requirements. Nevertheless, in cases where no single plaintiff’s claim satisfies the amount in controversy, requirement, such as the present cases, the issue of-Section 1367’s effect on Zahn does not arise. The nonaggregation rule still applies, the supplemental jurisdiction is not present, and a federal court does not have jurisdiction over any of the plaintiffs’ claims. See Anthony v. Security Pacific Financial Services, Inc., 75 F.3d 311, 315 (7th Cir.1996); Packard v. Provident National Bank, 994 F.2d 1039, 1045 (3d Cir.1993). In the absence of a common and undivided interest claimed by all' plaintiffs, their claims cannot be aggregated. (B) DECLARATORY AND INJUNCTIVE RELIEF. Recognizing that the individual plaintiffs’ claims cannot be aggregated to reach the requisite amount, the defendants contend that I should determine the amount in controversy from each defendant’s perspective because it will cost each defendant in excess of $50,000 to comply with the injunctive and declaratory relief requested by plaintiffs. The Eleventh Circuit has apparently not had an opportunity to deal with this specific issue, but Defendants rely upon several reported decisions that have viewed the amount in controversy from the defendant’s viewpoint. However, only two of those reported decisions involve class actions, while the rest were not subject to the rule against aggregation. Neither of the two class action cases is similar to the present case. Only one, Committee for G.I. Rights v. Callaway, 518 F.2d 466, 472 (D.C.Cir.1975), is a circuit decision. It involved the old version of Section 1331(a), the federal question jurisdictional statute, which then also contained" }, { "docid": "6341251", "title": "", "text": "and nuisance created by the dust and rocks which land on their property, and an amount in excess of $10,000 in punitive damages. They also asked for an injunction to prevent defendant’s continuing trespass and nuisance. Subsequently, defendant removed the case to this Court pursuant to 28 U.S.C. § 1441, contending that the case met the requirements for diversity jurisdiction as set out in 28 U.S.C. § 1332. Plaintiffs countered by seeking remand back to state court. They do not dispute that the parties are of diverse citizenship as required by 28 U.S.C. § 1332(a). However, they argue that defendant fails to show the jurisdictional amount of $75,000 because, on the face of the complaint, they only seek damages of in excess of $30,000 each. Defendant argues that in determining the jurisdictional amount, the Court may look beyond the dollar amount of damages sought by plaintiffs and may consider as well the amount which plaintiffs’ injunction request, if granted, would cost defendant. In support of its assertion, defendant has supplied an affidavit from Rodney Hobbs, an Area Production Manager for defendant. He states that closing the quarry near plaintiffs’ homes would deprive defendant of at least $4,862,-000 per year in pretax earnings, that each lost hour of daily production would amount to an annual economic impact of more than $979,000, and that any restriction which measurably reduced defendant’s output would have an annual economic impact on defendant in excess of $75,000. Plaintiffs reply that the Court should determine the amount in controversy only from plaintiffs’ perspective and not consider the economic impact on defendant. Discussion The law used to determine jurisdictional amount in “diversity” cases is quite clear, up to a point. Federal courts “have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states.” 28 U.S.C. § 1332(a). In addition, any matter which may have been originally brought in federal court, but is filed in a state court, may be removed by the defendant to federal district court. 28" }, { "docid": "2447198", "title": "", "text": "that this denies them guaranteed benefits. They point to an alleged ambiguity in the terms of the insurance coverage, and argue that under the law of Tennessee, the ambiguity must be resolved against the defendant. In removing the case, the defendant alleged the Court’s jurisdiction under the Labor-Management Relations Act of 1947, 29 U.S.C. § 185(a); diversity jurisdiction, 28 U.S.C. § 1332; and the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132. The Court has considered these allegations of jurisdiction, but finds that none of them has merit. The Labor-Management Relations Act, 29 U.S.C. § 185(a), gives the federal court jurisdiction over suits brought for violation of contracts between an employer and a labor organization; that is, for breach of a collective bargaining agreement. Defendant argues that the provisions of the agreement between South Central Bell and its employees will be relevant to this suit, and that the Court, therefore, has jurisdiction over the case. Obviously, plaintiffs are not employees of defendant, and no collective bargaining agreement exists between them. Even if the collective bargaining agreement plaintiffs enjoy has some unexplained relevance to their claim against defendant, that by itself cannot confer jurisdiction on the Court under § 185(a). Similarly, there is no jurisdiction under, 28 U.S.C. § 1332 because the amount in controversy has not been shown to exceed $10,000. Plaintiffs are suing in their individual capacities, and the claim of each is less than $1,000. Defendant points to cases in which federal courts have looked to the impact of the requested relief on the defendant to conclude the amount in controversy exceeds $10,000. Committee for G. I. Rights v. Callaway, 171 U.S.App.D.C. 73, 518 F.2d 466, 472 (1975); Miller v. Standard Federal Savings & Loan Association, 347 F.Supp. 185 (E.D.Mich.1972). These cases involved requests for injunctive relief, wherein the value of the requested relief to the plaintiff was relatively small but to the defendant, its cost could be quite substantial. Under such circumstances, it may well be appropriate to determine the amount in controversy from the defendant’s perspective rather than from the plaintiff’s. But this" }, { "docid": "9913988", "title": "", "text": "that the Court must strictly construe its removal jurisdiction, the Court concludes that any potential award of attorneys’ fees is too speculative to satisfy the amount in controversy requirement here. Having, determined that the alleged cost to the Defendant of complying with the requested injunction and the potential attorneys’ fees in this case-are not sufficient to satisfy Defendant’s burden to establish that $75,000 is in controversy, the Court must conclude that it does not have diversity jurisdiction over this matter. C. CAFA Jurisdiction Finally, Defendant alternatively contends that the Court should consider this lawsuit a “class action” over which it has jurisdiction pursuant to CAFA. Def.’s Opp’n at 27-28. “CAFA gives federal courts jurisdiction over certain class actions ... if the class has more than 100 members, the parties are minimally diverse, and the amount in controversy exceeds $5 million.” Dart, 135 S.Ct. at 552. Plaintiff argues that CAFA jurisdiction is absent here for two reasons. First, Plaintiff argues that Defendant has not carried its burden of demonstrating that $5 million is in controversy. The amount in controversy requirement of CAFA is not affected by the non-aggregation principle discussed above because the CAFA statute expressly allows for aggregation. 28 U.S.C. § 1332(d)(6) (“the claims of the individual class members shall be aggregated to determine whether the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs”). Accordingly, Plaintiff does not contend that it would be. inappropriate to consider the cost to Defendant of complying with the requested injunction when calculating the amount in controversy in this context. See Pl.'s Reply at 20 n.12 (“arguments related to whether the Court can consider the cost-to-defendant of the injunctive relief requested do not apply”). That being said, the parties do dispute whether Defendant would need to spend $5 million to comply with the injunctive relief requested in this case. Pl.’s Mot. at 10-11; Def.’s Opp’n at 38-39; Pl.’s Reply, at 20. The Court need not resolve the parties’ dispute on this issue, however, because class action jurisdiction under CAFA is absent here for a much more fundamental reason:" }, { "docid": "2447199", "title": "", "text": "the collective bargaining agreement plaintiffs enjoy has some unexplained relevance to their claim against defendant, that by itself cannot confer jurisdiction on the Court under § 185(a). Similarly, there is no jurisdiction under, 28 U.S.C. § 1332 because the amount in controversy has not been shown to exceed $10,000. Plaintiffs are suing in their individual capacities, and the claim of each is less than $1,000. Defendant points to cases in which federal courts have looked to the impact of the requested relief on the defendant to conclude the amount in controversy exceeds $10,000. Committee for G. I. Rights v. Callaway, 171 U.S.App.D.C. 73, 518 F.2d 466, 472 (1975); Miller v. Standard Federal Savings & Loan Association, 347 F.Supp. 185 (E.D.Mich.1972). These cases involved requests for injunctive relief, wherein the value of the requested relief to the plaintiff was relatively small but to the defendant, its cost could be quite substantial. Under such circumstances, it may well be appropriate to determine the amount in controversy from the defendant’s perspective rather than from the plaintiff’s. But this case is readily distinguishable from the cases cited. If plaintiffs were to succeed on the merits, they would do so because a court found that they were entitled to benefits under the contract construed to eliminate the alleged ambiguity or to comply with the public policy of Tennessee. If it happened that they submitted further claims for reimbursement sometime in the future, defendant would be collaterally estopped from raising the issue of coverage vel non. But the collateral estoppel effect, even if measurable, cannot be relied upon to augment the value of the right in dispute in this suit. Beaman v. Pacific Mutual Life Insurance Co., 369 F.2d 653 (4th Cir. 1966); Elliott v. Empire Natural Gas Co., 4 F.2d 493 (8th Cir. 1925); Berlin v. Travelers Ins. Co. of Hartford, Conn., 18 F.Supp. 126 (D.Md.1937). As a result, the Court must conclude that defendant’s allegation of the required amount in controversy is without merit, and diversity jurisdiction is absent. Finally, defendant relies on the provisions of the Employee Retirement Income Security Act (ERISA) and" }, { "docid": "15934687", "title": "", "text": "consists of cold meat sandwiches, with hot soup being made available only to those workers who have supplied themselves with thermos bottles at their own expense. Plaintiffs’ counsel represent that the issue is much more fundamental than even they had initially appraised it. Puerto Ricans, they submit, are “little people” whose native culture has accustomed them to large, hot noon-time meals and whose physical stature is such that their health and well-being will not withstand the rigors of strenuous manual labor unless such hot meals are provided. Despite the defendants’ representations that it was not until very recently that such a provision has been included within such contracts, the plaintiffs contend that it is “unthinkable” for a Puerto Rican to engage in strenuous physical labor without a hot noon-time meal. Moreover, in their verified complaint, the plaintiffs have alleged that the food provided was nutritionally inadequate and that the defendants never intended to comply with the aforesaid provision of the agreement. Alleging irreparable harm, the plaintiffs seek certification for a class action, which might include as many as 1200 plaintiffs, and request the following relief: (1) a preliminary and permanent injunction restraining the defendants from violating Article 6C of the agreement; (2) compensatory damages; (3) an order directing the defendants to reimburse all monies charged for food under the agreement in excess of cost and; (4) punitive damages in the amount of $25 for each plaintiff and every member of the class they represent. The Law The court is not unmindful of the peculiar needs and problems with which migrant farm workers are faced. However, viewed individually, and in proper perspective, the claim of each individual plaintiff falls well below the jurisdictional amount requirement of 28 U.S.C. §§ 1331 and 1332. Those sections require that the matter in controversy exceed “the sum or value of $10,000 exclusive of interests and costs. Moreover, such claims may not be aggregated in order to meet the jurisdictional amount requirement. The circumstances under which claims may be aggregated are set forth in Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319" }, { "docid": "9913974", "title": "", "text": "in controversy. 1. The Cost of Complying with, the Requested Injunction The Court first finds that the purported cost of complying with the injunc-tive relief Plaintiff requests is not sufficient to satisfy the amount in controversy requirement. The Court begins by noting that it rejects Plaintiffs argument, that Defendant’s “alleged cost of compliance ... is no longer considered a proper measure of jurisdictional minimum in district courts in this Circuit.” Pl.’s Mot. at 8. Under binding precedent, the cost-to-defendant test is in fact one appropriate method of measuring the value of. injunc-tive relief in this Circuit. In Tatum v. Laird the Court of Appeals for the District of Columbia Circuit held that “the test for determining the amount in controversy is the pecuniary result to either party which the judgment would directly produce,” and determined that the amount in controversy requirement was satisfied in- that case because “the cost to the [defendant] of complying with such a [injunction] might well exceed $10,000.” 444 F.2d 947, 951, n.6 (D.C. Cir. 1971), rev'd on other grounds, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). After Tatum, the Court of Appeals and district courts of this Circuit have repeatedly-followed this rule. See Smith v. Washington, 593 F.2d 1097, 1099 (D.C. Cir. 1978) (“a court may look either to the value of the right that plaintiff seeks to enforce or to protect or to the cost to the defendants to remedy the alleged denial,”) (quotations omitted); Comm. for GI Rights v. Callaway, 518 F.2d 466, 472 (D.C. Cir. 1975) (“the amount in controversy may be measured either by the ‘value of the right sought to be gained by the plaintiff or the cost of enforcing that right to the defendant’ ”) (quoting Tatum, 444 F.2d at 951); Breathe DC v. Santa Fe Nat. Tobacco Co., No. CV 16-2378 (ESH), 232 F.Supp.3d 163, 169, 2017 WL 521513, at *4 (D.D.C. Feb. 8, 2017) (“This Court must follow Circuit precedent, and thus it will consider the cost of the injunction to defendants”). The Court follows this precedent and concludes that the cost-to-defendant test remains" }, { "docid": "1892246", "title": "", "text": "Dierks and National Welfare Rights Organization, supra. Finally, they often involve an attempt to enforce a right that belongs to a group. E.g., Berman and Bass, supra. Although the matter is not entirely free from doubt, the court holds that because these elements are missing from the case at bar, this is not a case in which aggregation is permitted. The instant action is a diversity action; each class member could presumably have sued on her own behalf, and damage claims will be individualized. 2. Aggregation based on Cost to Defendant Defendant next argues that because plaintiffs also seek injunctive relief in this action the court can determine the jurisdictional amount by looking to the cost to the defendant of complying with any equitable relief ordered in this action. Defendant represents by way of affidavit that such cost would exceed $10,000. To support its argument defendant relies on cases of this circuit in which the court allowed the jurisdictional amount to be met by looking to the defendants’ cost of compliance. Smith v. Washington, 593 F.2d 1097, 1099 (D.C. Cir.1978); Committee for GI Rights v. Callaway, 518 F.2d 466, 473 (D.C.Cir.1975); Tatum v. Laird, 444 F.2d 947, 951 (D.C.Cir.1971), rev’d on other grounds, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). As plaintiffs point out, however, in none of these cases was a plaintiff seeking both equitable and money damages. Further, all of these cases arose under the court’s federal question jurisdiction and involved constitutional issues. Plaintiffs have pointed to cases from other circuits in which courts have explicitly considered whether in a diversity class action in which damages and injunctive relief are sought a court can determine the amount in controversy from the defendant’s viewpoint. Two circuits have held that a court cannot view the damage issue from the viewpoint of the defendant in such cases, reasoning that to do so would be an unwarranted circumvention of the rule laid down in Snyder, supra. Courts that do not permit the defendant’s viewpoint to control argue that viewing the jurisdictional amount issue from the defendant's point of view" }, { "docid": "21044992", "title": "", "text": "a jurisdictional amount. It found that each member of the plaintiff class actually met the jurisdictional amount, but in dictum, agreed that the jurisdictional amount “is also satisfied with respect to all of the plaintiffs because of the costs that the [defendant] would incur ...” 518 F.2d at 472. It did not attempt to analyze application of “either party’s perspective” in a class action context. Similarly, in the second decision involving a class action relied upon by the defendants, Martin v. Granite City Steel Corp., 596 F.Supp. 293 (S.D.Ill.1984), after finding that the class plaintiffs’ claims for punitive damages and compensatory damages seemed to exceed the jurisdictional amount for each plaintiff (under Zahn), the Court measured the plaintiffs’ claim for equitable relief under the “either viewpoint rule,” and included, a pro rata share of that amount for each plaintiff. Alternatively, it found that the plaintiffs were seeking to enforce “common and undivided interests,” which allowed aggregation. Thus, this case provides no support to the defendants’ contention here. Inclusion for each plaintiff of a pro rata share of the impact on the defendant of the injunctive relief is not what the defendants seek here. Most importantly, Defendants rely on a recent decision of this court in Hastings v. Ford Life Insurance Co., 96cv291 (N.D.Fla.1996), where, in the companion cases, Judge Lacey A. Collier determined that the cost to the defendant in complying with an injunction was sufficient to satisfy the jurisdictional amount in controversy. Although I would like very much to simply follow the Hastings rationale, I must reluctantly conclude that I cannot. In class actions, it generally seems to be improper to look to the effect of an adverse judgment on the defendant, or the amount it would cost the defendant to comply with an injunction, in order to determine if the amount in controversy has been satisfied. See 1 J. Moore, Moore’s Federal Practice ¶¶ 0.91[1], 0.97[5] at pp. 819-20, 932 (Supp.) (although the practice of determining the amount in controversy by looking at the cost to either party is the better view in bipolar litigation, courts should refuse" }, { "docid": "7157740", "title": "", "text": "days after receiving Manze’s initial pleading, as required by 28 U.S.C. § 1446(b). We will address these points in turn. 1. First, since State Farm alleged jurisdiction for removal under 28 U.S.C. § 1332, we inquire whether that section’s criteria exist here. Section 1332 states in pertinent part: (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between— (1) citizens of different States[.] 28 U.S.C. § 1332(a). Manze apparently concedes that her citizenship is diverse from that of State Farm. The plaintiff contests solely whether or not an amount in controversy in excess of $10,000 exists for purposes of diversity jurisdiction. She argues that since the petition to appoint a neutral arbitrator did not involve an amount in controversy, the defendant’s removal of the petition from state to federal court violated the terms of § 1441. We disagree both with Manze’s factual assumption and with her conclusion. Manze never claimed less that $10,000 in her underlying suit for uninsured motorist benefits. To the contrary, the policy states a $15,000 limit for such claims. Thus, it appears that arbitration might result in an award exceeding the jurisdictional amount. The opinion of the Court of Appeals for the Second Circuit in Davenport v. Proctor & Gamble Mfg. Co., 241 F.2d 511 (2d Cir.1957), is instructive. There, the plaintiff commenced a state court proceeding to compel arbitration according to the terms of a collective bargaining agreement. The defendant removed the matter to federal court. When the district court denied the plaintiff’s subsequent motions to remand and to compel arbitration, the plaintiff appealed. The court of appeals addressed, inter alia, the propriety of the order denying the motion to remand and determined: In considering the jurisdictional amount requirement the court should look through to the possible award resulting from the desired arbitration, since the petition to compel arbitration is only the initial step in a litigation which seeks as its goal a judgment affirming the award. Id. at 514. The court of" } ]

[ { "docid": "829412", "title": "", "text": "the District Court for the Northern District of Georgia’s registry as a “conditional fine” to be remitted upon performance of the other proposed purging actions. We will make a finding of civil contempt — that is, willful disregard of the authority of this Court — only upon a showing that the alleged contempt is clear and convincing. See McGregor v. Chierico, 206 F.3d 1378, 1383 (11th Cir.2000); NLRB v. Crockett-Bradley, Inc., 598 F.2d 971, 975 (5th Cir.1979). “This burden of proof is more exacting than the ‘preponderance of the evidence’ standard but, unlike criminal contempt, does not require proof beyond a reasonable doubt.” Jordan v. Wilson, 851 F.2d 1290, 1292 (11th Cir.1988) (per curiam). The clear and convincing evidence must establish that: (1) the allegedly violated order was valid and lawful; (2) the order was clear and unambiguous; and (3) the alleged violator had the ability to comply with the order. McGregor, 206 F.3d at 1383 (emphasis added). Our disposition of the instant Petition concerns the second element of the standard for a finding of civil contempt. “In determining whether a party is in contempt of a court order, the order is subject to reasonable interpretation, though it may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.” Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir.2002). Moreover, we will construe any ambiguities or uncertainties in such a court order in a light favorable to the person charged with contempt. NBA Properties, Inc. v. Gold, 895 F.2d 30, 32 (1st Cir.1990). Our focus in a civil contempt proceeding “is not on the subjective beliefs or intent of the alleged contemners in complying with the order, but whether in fact their conduct complied with the order at issue.” Howard Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1516 (11th Cir.1990). Here, the Board argues that Georgia Power’s participation in the ultimately unsuccessful negotiations over the OPRB and its right to unilaterally change OPRB was insufficient to permit the implementation of changes to the OPRB or of the unilateral ability to make" } ]

[ { "docid": "11562775", "title": "", "text": "484 F.3d 1288, 1291 (11th Cir. 2007); McGregor v. Chierico, 206 F.3d 1378, 1383 (11th Cir.2000); Cook v. Ochsner Foundation Hospital, 559 F.2d 270, 272 (5th Cir.1977). There is no support for the proposition that a debtor may bootstrap a technical rule violation to a contempt of court. As Critten has not identified an order of this Court which she believes Quantum has violated, it follows that there can be no contempt of court. Examination of Bankruptcy Rule 3001 does not indicate any intention to create a private right of action. Rule 3001 is a claims processing rule intended to aid the Court in determining whether a given bankruptcy claim should be allowed. A properly filed proof of claim is prima facie evidence that a creditor has a valid claim. Rule 3001(f). It follows that a proof of claim which runs afoul of the rule is not entitled to a presumption of validity. The remedy provided at Rule 3001(c)(2)(D) deals exclusively with the claims allowance process within a bankruptcy case. To infer a free standing cause of action from this provision would be to stretch the rule beyond its breaking point. C. Count III of the Amended Complaint fails to state a claim as the adoption of an Official Form does not give rise to a private right of action One who hopes to get paid in a bankruptcy proceeding must file a proof of claim. 11 U.S.C. § 501. One who files a proof of claim in a bankruptcy case is required to use Official Form B 10 as prescribed by the Judicial Conference of the United States. Rules 3001(a), 9009. Form B 10 requires that it be signed by the creditor or an appropriate representative. Immediately above the signature line the following certification is called for: “I declare under penalty of perjury that the information provided in this claim is true and correct to the best of my knowledge, information and reasonable belief.” One who files a false claim is subject to criminal prosecution. 18 U.S.C. §§ 152 and 3571. None of this is to say that there" }, { "docid": "11562768", "title": "", "text": "prima facie validity. Critten cites three cases for the proposition that there is a private right of action for a violation of Rule 3001. (Doc. 32, pp. 6-7). These cases will be examined one at a time. The first case cited by Critten for this proposition is Kerney v. Capital One Financial Corp. (In re Sims), 278 B.R. 457, 481 (Bankr.E.D.Tenn.2002). The page cited by Critten stands for nothing more than the Bankruptcy Court has the inherent power to sanction a party for improper conduct. Id. In Sims, a class action suit was filed alleging that Capital One had a practice of filing claims for amounts in excess of that which was actually owed. The only similarity between Sims and the case at bar is that both involves claims in bankruptcy court. The Bankruptcy Court in Sims dismissed four of the six counts for failure to state a claim for which relief may be granted, leaving only counts 5 and 6. Count 5 in Sims was a claim for turnover, alleging that Capital One had been overpaid and should be required to return amounts improperly received. Critten made no such claim here. Count 6 in Sims alleged an overpayment on a claim and sought its return on several theories, such as false representation and abuse of process. Again, Critten makes no such claim here. She does not allege that Quantum improperly padded the amount of its claim; rather she alleges that Quantum did not comply with Rule 3001, a claim not made in Sims. The second case cited by Critten is Thigpen v. Matrix Financial Svcs. Corp. (In re Thigpen), Adv. No. 04-1035, 2004 WL 6070299 (Bankr.S.D.Ala. Aug. 2, 2004). In Thigpen, a class action suit was brought against a lender for filing false affidavits in support of motions for relief from the automatic stay. This decision denied reconsideration of an earlier unpublished decision denying a motion to dismiss and granting the plaintiffs motion to strike a jury demand. Neither the reported decision in Thigpen cited above nor the earlier unreported decision make any mention of Rule 3001. All of" }, { "docid": "11562759", "title": "", "text": "MEMORANDUM DECISION William R. Sawyer, United States Bankruptcy Judge This Adversary Proceeding is before the Court on the Motion for Judgment on the Pleadings filed by Defendant Quantum3 Group, LLC. (Doc. 27). The motion is fully briefed. (Docs.27, 32, 33). For the reasons set forth below, the motion is GRANTED and the complaint of Plaintiff Pamela G. Critten is DISMISSED WITH PREJUDICE. I. FACTS Plaintiff Pamela G. Critten filed a petition in bankruptcy pursuant to Chapter 13 of the Bankruptcy Code on May 21, 2014. (Case No. 14-10944, Doc. 1). Defendant Quantum3 Group, LLC, filed a timely proof of claim on July 7, 2014. (Case No. 14-10944, Claim No. 3). The underlying claim is for an indebtedness on a credit card. It appears that Critteris indebtedness was assigned several times and that it is now owned by Galaxy Portfolios, LLC. Quantum is an agent for Galaxy and it filed Claim No. 3 on behalf of Galaxy. The claim is unsecured in the amount of $2,558.33. On July 8, 2014, Critten filed an objection to the claim contending that it was barred by the statute of limitations. (Case No. 14-10944, Doc. 17). Under this Court’s local rules, Quantum’s response was due in 30 days. LBR 3001-1. As Quantum did not file a timely response, the Court sustained Critten’s objection by default by its order dated August 13, 2014. (Case No. 14-10944, Doc. 27). On October 15, 2014, Quantum moved for reconsideration of the order sustaining Critten’s objection to its claim. (Case No. 14-10944, Doc. 45). The Court denied the motion by its order of November 25, 2014. (Case No. 14-10944, Does. 50, 51). In the meantime, on July 18, 2014, Crit-ten filed a complaint initiating this Adversary Proceeding. (Doc. 1). Critten amended her complaint on October 5, 2014. (Doc. 14). Quantum promptly answered the Amended Complaint (Doc. 15) and then doubled back and moved for judgment on the pleading. (Doc. 27). II. JURISDICTION AND PROCEDURAL SETTING A. Jurisdiction This Court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1334(b). This is a core proceeding within the mean ing" }, { "docid": "11562762", "title": "", "text": "relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 677-79, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009) (internal citations omitted). C. Class Action Suit The Plaintiff in this case seeks standing to proceed as a class pursuant to Rule 23, Fed. R. Civ. P., incorporated by Rule 7023, Fed. R. Bankr. P. Because the Court finds that the Plaintiff has failed to state a claim for which relief may be granted, the Court need not reach the question as to whether a class should be certified here. III. APPLICATION OF THE LAW TO THIS CASE Having set out the appropriate legal standard, the Court will consider Quantum’s motion on the merits. As Critten’s Amended Complaint contains three counts, the Court will analyze each count separately- A. Count I of Critten’s Amended Complaint is dismissed because: (1) it is moot; (2) she fails to state sufficient facts to show that Quantum has violated Rule 3001. In Count I of her Amended Complaint (Doc. 14), Critten seeks the disallowance of Quantum’s claim on the grounds that it failed to comply with the requirements of Bankruptcy Rule 3001. Count I is deficient for two reasons. First, in light of this Court’s Order of August 13, 2014, sustaining Critten’s Objection to Claim, thereby disallowing Quantum’s claim, Count I should be denied as moot. Second, as Critten does not allege any facts in her Amended Complaint in support of her contention that Quantum’s Proof of Claim violates Bankruptcy Rule 3001; she fails to state a claim. Third, even if Critten were to allege sufficient facts to show a Rule 3001 violation, it does not follow that a bankruptcy claim should be disallowed merely because a creditor failed to observe the rule. 1. Count I is moot. Critten’s request, in Count I of her Amended Complaint, is to disallow Quantum’s claim in her bankruptcy case. As that has already been done, it" }, { "docid": "11562777", "title": "", "text": "is a private right of action for not filling out the form properly. In Part III(B), supra, the Court discussed why there is no private right of action for the failure to strictly comply with Rule 3001. That discussion is also appropriate here. TV. CONCLUSION The Plaintiffs complaint is dismissed because it fails to state a claim for which relief may be granted. First, Critten alleges in general terms a violation of Rule 3001 but her complaint is deficient because she does not allege any facts showing a violation. Second, even she had alleged that Quantum violated Rule 3001, it does not follow that there is a private right of action for such a violation. The consequence resulting from the failure to comply with Rule 3001 is to strip the claim of its-prima facie validity but not necessary disallow the claim, and certainly not provide a private right of action for damages. Third, to the extent that Critten seeks disallowance of Quantum’s claim, that is moot because the Court has, in proceedings in the main bankruptcy case, already sustained Critteris objection and disallowed the claim. Fourth, to the extent that Critten seeks remedies for contempt of court, she has failed to identify any order of the Court which Quantum has flouted. The violation of a procedural rule is not contempt of court. Assuming that all the facts pled by Critten are true, she has failed to state a claim for which relief may be granted. Accordingly, the Amended Complaint should be dismissed with prejudice. The Court will enter a separate order to this effect. . Critten alleged in her original complaint that Quantum filed a claim which was barred . by the statute of limitations and therefore a violation of the Fair Debt Collection Practices Act (FDCPA). 5 U.S.C. § 1692. (Doc. 1). When Critten amended her complaint she abandoned her FDCPA claim, claiming instead that Quantum violated Bankruptcy Rule 3001 and Form B10. (Doc. 14). In light of Critten’s abandonment of her FDCPA claim, the Court need not consider it now. . Critten alleged in her objection to Quantum’s" }, { "docid": "11562772", "title": "", "text": "is a remedy which may be awarded in connection with a proceeding involving the validity of a claim and it does not create a stand-alone cause of action. Examination of the cases interpreting this language supports this reading. In In re Reynolds, 470 B.R. 138 (Bankr. D.Colo.2012), the court was faced with the question of what “other appropriate relief’ means. In Reynolds, the Court stated that “because claim disallowance falls outside of the remedies enumerated under Rule 3001(c)(2)(D), the rule precludes such a remedy.” Reynolds, 470 B.R. at 145. The Court in Reynolds allowed the creditor’s claim finding that a failure to strictly comply with Rule 3001 was not a basis to disallow the claim. Moreover, the Court in Reynolds did not find cause to impose any other sanction. Though Reynolds did not consider the question of whether Rule 3001 creates an independent cause of action, if the remedy for noncompliance is not disallowance of the claim, it necessarily follows that the much greater remedy of an independent cause of action is likewise not allowed. See also Kelley v. FIA Card Serves, NA. (In re Khatibi), Civ. No. 5:14-CV-44,2014 WL 2617280, *5 (M.D.Ga. June 12, 2014) (holding that a claim will not be disallowed solely because of the failure to comply with Rule 3001); In re Gorman, 495 B.R. 823 (Bankr.E.D.Tenn. 2013) (to same effect); In re Brunson, 486 B.R. 759 (Bankr.N.D.Tex.2013); In re Dunlap, Case No. 12-30710, 2013 WL 5497047 (Bankr.D.Colo. Oct 3, 2013); In re Rehman, 479 B.R. 238 (Bankr.D.Mass. 2012); Hall v. Roundup Funding, LLC (In re Hall), Case No. 10-98992-MGD, 2011 WL 1933752, *2 (Bankr.N.D.Ga. Apr. 4, 2011) (overruling objection to claim where there were other indicia of reliability of the claim in the record, notwithstanding the fact that the proof of claim failed to strictly comply with Rule 3001). All of this is to say that there is a considerable body of case law on the books concerning the question of what results when a Proof of Claim fails to comply with the technical requirements of Rule 3001. None of the cases cited by Critten" }, { "docid": "11562764", "title": "", "text": "need not be done again. The mootness doctrine arises out of the requirement that there must be a live case or controversy for a Federal Court to take jurisdiction over a proceeding. BankWest, Inc. v. Baker, 446 F.3d 1358, 1363-64 (11th Cir.2006) (holding that case which becomes moot must be dismissed for want of a case or controversy); ITT Rayonier Inc. v. U.S., 651 F.2d 343, 345 (5th Cir.1981); Florida Board of Bus. Reg. v. NLRB, 605 F.2d 916, 918-19 (5th Cir.1979) (holding that an action becomes moot when “the issues presented are no longer ‘live’ ”). In response to Quantum’s mootness argument, Critten cites the case of McBride v. CitiMortgage (In re McBride), Civ. No. 10 MC 3498-MHT, 2010 WL 1688017 (M.D.Ala. 4/23/2010). (Doc. 32, p. 3). In McBride, the District Court denied Defendant CitiMortgage’s motion to withdraw the .reference. The underlying claim in McBride was that CitiMortgage used false affidavits to obtain relief from the automatic stay and ultimately to wrongfully foreclose on the Debtor’s home. McBride does not in any way, shape, or form address the issue as to whether Count I of Critten’s complaint, which seeks disallowance of a claim, is moot. For this reason, Count I should be dismissed with prejudice. 2. Count I fails to plead sufficient facts to show a violation of Rule 3001 Critten’s Amended Complaint is 14 pages long, consisting of 74 numbered paragraphs, many of which have lettered subparts. In addition, Critten attaches a 76 page transcript of proceedings in a Bankruptcy Court in Texas, involving Quantum. To be sure, Quantum may have filed a Proof of Claim in Texas which failed to comply with Rule 3001. However, even if that is true, it does not follow that they necqssarily did so here. In all of this long, rambling and prolix filing, Critten does not allege any facts which show that the Proof of Claim filed by Quantum in this case fails to comply with Rule 3001. The Court need not cite Rule 3001 in its entirety but will briefly summarize it. Rule 3001 is a technical set of rules" }, { "docid": "11562770", "title": "", "text": "which is to say that Thigpen does not support Critten’s contention that she has a cause of action against Quantum for an alleged violation of Rule 3001. The third case cited by Critten for the proposition in question was handed down by the District Court. McLean v. Greenpoint Credit, LLC (In re McLean), 515 B.R. 841 (M.D.Ala.2014). In McLean, a debtor brought an Adversary Proceeding against a creditor who filed a proof of claim on an indebtedness which had been discharged in a previous bankruptcy. The District Court affirmed the Bankruptcy Court’s holding that the creditor violated the discharge injunction in the earlier case when it filed the proof of claim in the latter case. McLean has nothing to do with Rule 3001 and the case does not support the proposition that a violation of Rule 3001 gives rise to a cause of action. None of the cases cited by Critten in her brief support the proposition that the violation of Rule 3001 gives rise to an independent cause of action. Rather, the cited cases involve creditor misconduct in bankruptcy cases. The flaw in Critten’s logic is that she equates a facial claim of a violation of Rule 3001 with sanctionable conduct. While Critten does not discuss Rule 3001(c)(2)(D), that provision should be considered here. If the holder of a claim fails to provide any information required by this subdivision (c), the court may, after notice and hearing, take either or both of the following actions: (i) preclude the holder from presenting the omitted information, in any form, as evidence in any contested matter or adversary proceeding in the case, unless the court determines that the failure was substantially justified or is harmless; or (ii) award other appropriate relief, including reasonable expenses and attorney’s fees caused by the failure. This provision was added to Rule 3001 in 2011. While it specifically mentions an award of expenses and attorney’s fees, there is nothing in the language which indicates that Congress intended to create an independent action for the violation of Rule 3001. It appears clear enough from this language that this" }, { "docid": "11562767", "title": "", "text": "for that matter, any specific part of the rule. Nor does it explain how she believes the proof of claim is deficient. For this reason, the complaint does not “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677-79, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). B. Count II of the Amended Complaint should be dismissed because the failure to comply with Rule 3001 does not give rise to an independent cause of action Count II — which seeks money damages for an alleged violation of Rule 3001 — should be dismissed because a violation of Rule 3001 does not give rise to an independent cause of action. Critten has cited no cases, and the Court has found no cases, which stand for the proposition that the failure to comply with Rule 3001 gives rise to an independent cause of action. The remedy for the failure to comply with Rule 3001 is to strip the claim of its prima facie validity. Critten cites three cases for the proposition that there is a private right of action for a violation of Rule 3001. (Doc. 32, pp. 6-7). These cases will be examined one at a time. The first case cited by Critten for this proposition is Kerney v. Capital One Financial Corp. (In re Sims), 278 B.R. 457, 481 (Bankr.E.D.Tenn.2002). The page cited by Critten stands for nothing more than the Bankruptcy Court has the inherent power to sanction a party for improper conduct. Id. In Sims, a class action suit was filed alleging that Capital One had a practice of filing claims for amounts in excess of that which was actually owed. The only similarity between Sims and the case at bar is that both involves claims in bankruptcy court. The Bankruptcy Court in Sims dismissed four of the six counts for failure to state a claim for which relief may be granted, leaving only counts 5 and 6. Count 5 in Sims was a claim for turnover, alleging that Capital One had" }, { "docid": "11562765", "title": "", "text": "or form address the issue as to whether Count I of Critten’s complaint, which seeks disallowance of a claim, is moot. For this reason, Count I should be dismissed with prejudice. 2. Count I fails to plead sufficient facts to show a violation of Rule 3001 Critten’s Amended Complaint is 14 pages long, consisting of 74 numbered paragraphs, many of which have lettered subparts. In addition, Critten attaches a 76 page transcript of proceedings in a Bankruptcy Court in Texas, involving Quantum. To be sure, Quantum may have filed a Proof of Claim in Texas which failed to comply with Rule 3001. However, even if that is true, it does not follow that they necqssarily did so here. In all of this long, rambling and prolix filing, Critten does not allege any facts which show that the Proof of Claim filed by Quantum in this case fails to comply with Rule 3001. The Court need not cite Rule 3001 in its entirety but will briefly summarize it. Rule 3001 is a technical set of rules which prescribe what a Proof of Claim should contain. To begin, a Proof of Claim must use the appropriate Official Form, as prescribed by the Judicial Conference of the United States. Rule 3001(a). Claims based upon a writing should contain a copy of the writing. Rule 3001(c)(1). Claims based upon credit card debts should have the name of the company from whom the creditor bought the debt, the name of the company the debtor owed at the time of the last transaction, the date of the last transaction, the date of the last payment and the date on which the account was charged to profit and loss. Rule 3001(c)(3)(A). While Critten does not cite any particular provision of the Rule which she believes Quantum violated, the part which appears to be most pertinent here is sub-part (c)(3)(A) which calls for the claimant to provide certain supporting information in support of its claim. Rule 3001(c)(3)(A)(i)-(v), Fed. R. Bankr.P. For all of its length, Critten’s complaint makes no reference to any of these subparts cited above, or" }, { "docid": "11562771", "title": "", "text": "involve creditor misconduct in bankruptcy cases. The flaw in Critten’s logic is that she equates a facial claim of a violation of Rule 3001 with sanctionable conduct. While Critten does not discuss Rule 3001(c)(2)(D), that provision should be considered here. If the holder of a claim fails to provide any information required by this subdivision (c), the court may, after notice and hearing, take either or both of the following actions: (i) preclude the holder from presenting the omitted information, in any form, as evidence in any contested matter or adversary proceeding in the case, unless the court determines that the failure was substantially justified or is harmless; or (ii) award other appropriate relief, including reasonable expenses and attorney’s fees caused by the failure. This provision was added to Rule 3001 in 2011. While it specifically mentions an award of expenses and attorney’s fees, there is nothing in the language which indicates that Congress intended to create an independent action for the violation of Rule 3001. It appears clear enough from this language that this is a remedy which may be awarded in connection with a proceeding involving the validity of a claim and it does not create a stand-alone cause of action. Examination of the cases interpreting this language supports this reading. In In re Reynolds, 470 B.R. 138 (Bankr. D.Colo.2012), the court was faced with the question of what “other appropriate relief’ means. In Reynolds, the Court stated that “because claim disallowance falls outside of the remedies enumerated under Rule 3001(c)(2)(D), the rule precludes such a remedy.” Reynolds, 470 B.R. at 145. The Court in Reynolds allowed the creditor’s claim finding that a failure to strictly comply with Rule 3001 was not a basis to disallow the claim. Moreover, the Court in Reynolds did not find cause to impose any other sanction. Though Reynolds did not consider the question of whether Rule 3001 creates an independent cause of action, if the remedy for noncompliance is not disallowance of the claim, it necessarily follows that the much greater remedy of an independent cause of action is likewise not allowed." }, { "docid": "11562773", "title": "", "text": "See also Kelley v. FIA Card Serves, NA. (In re Khatibi), Civ. No. 5:14-CV-44,2014 WL 2617280, *5 (M.D.Ga. June 12, 2014) (holding that a claim will not be disallowed solely because of the failure to comply with Rule 3001); In re Gorman, 495 B.R. 823 (Bankr.E.D.Tenn. 2013) (to same effect); In re Brunson, 486 B.R. 759 (Bankr.N.D.Tex.2013); In re Dunlap, Case No. 12-30710, 2013 WL 5497047 (Bankr.D.Colo. Oct 3, 2013); In re Rehman, 479 B.R. 238 (Bankr.D.Mass. 2012); Hall v. Roundup Funding, LLC (In re Hall), Case No. 10-98992-MGD, 2011 WL 1933752, *2 (Bankr.N.D.Ga. Apr. 4, 2011) (overruling objection to claim where there were other indicia of reliability of the claim in the record, notwithstanding the fact that the proof of claim failed to strictly comply with Rule 3001). All of this is to say that there is a considerable body of case law on the books concerning the question of what results when a Proof of Claim fails to comply with the technical requirements of Rule 3001. None of the cases cited by Critten and none which the Court has found by conducting its own research support the proposition that a debtor may sue a creditor and recover damages for the failure to comply with Rule 3001. A recent case from the Eastern District of Tennessee is of interest: In re Wheeler, Case No. 12-12454, 2013 WL 2404003 (Bankr.E.D.Tenn. May 31, 2013). In Wheeler, a debtor objected to a claim filed by Quantum contending that Quantum’s claim failed to comply with Rule 3001. The only significant difference between Wheeler and the case at bar is that in Wheeler the debtor objected with specificity as to how he thought Quantum’s claim was deficient under Rule 3001. The court in Wheeler, citing its decision in Gorman, found that the failure to comply with Rule 3001 was not a sufficient basis upon which to disallow a claim. Critten alleges in Count II of her Amended Complaint that by violating Rule 3001, Quantum has committed a contempt of court. Contempt is the willful disobedience of a court order. Georgia Power Co. v. NLRB," }, { "docid": "11562766", "title": "", "text": "which prescribe what a Proof of Claim should contain. To begin, a Proof of Claim must use the appropriate Official Form, as prescribed by the Judicial Conference of the United States. Rule 3001(a). Claims based upon a writing should contain a copy of the writing. Rule 3001(c)(1). Claims based upon credit card debts should have the name of the company from whom the creditor bought the debt, the name of the company the debtor owed at the time of the last transaction, the date of the last transaction, the date of the last payment and the date on which the account was charged to profit and loss. Rule 3001(c)(3)(A). While Critten does not cite any particular provision of the Rule which she believes Quantum violated, the part which appears to be most pertinent here is sub-part (c)(3)(A) which calls for the claimant to provide certain supporting information in support of its claim. Rule 3001(c)(3)(A)(i)-(v), Fed. R. Bankr.P. For all of its length, Critten’s complaint makes no reference to any of these subparts cited above, or for that matter, any specific part of the rule. Nor does it explain how she believes the proof of claim is deficient. For this reason, the complaint does not “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677-79, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). B. Count II of the Amended Complaint should be dismissed because the failure to comply with Rule 3001 does not give rise to an independent cause of action Count II — which seeks money damages for an alleged violation of Rule 3001 — should be dismissed because a violation of Rule 3001 does not give rise to an independent cause of action. Critten has cited no cases, and the Court has found no cases, which stand for the proposition that the failure to comply with Rule 3001 gives rise to an independent cause of action. The remedy for the failure to comply with Rule 3001 is to strip the claim of its" }, { "docid": "11562769", "title": "", "text": "been overpaid and should be required to return amounts improperly received. Critten made no such claim here. Count 6 in Sims alleged an overpayment on a claim and sought its return on several theories, such as false representation and abuse of process. Again, Critten makes no such claim here. She does not allege that Quantum improperly padded the amount of its claim; rather she alleges that Quantum did not comply with Rule 3001, a claim not made in Sims. The second case cited by Critten is Thigpen v. Matrix Financial Svcs. Corp. (In re Thigpen), Adv. No. 04-1035, 2004 WL 6070299 (Bankr.S.D.Ala. Aug. 2, 2004). In Thigpen, a class action suit was brought against a lender for filing false affidavits in support of motions for relief from the automatic stay. This decision denied reconsideration of an earlier unpublished decision denying a motion to dismiss and granting the plaintiffs motion to strike a jury demand. Neither the reported decision in Thigpen cited above nor the earlier unreported decision make any mention of Rule 3001. All of which is to say that Thigpen does not support Critten’s contention that she has a cause of action against Quantum for an alleged violation of Rule 3001. The third case cited by Critten for the proposition in question was handed down by the District Court. McLean v. Greenpoint Credit, LLC (In re McLean), 515 B.R. 841 (M.D.Ala.2014). In McLean, a debtor brought an Adversary Proceeding against a creditor who filed a proof of claim on an indebtedness which had been discharged in a previous bankruptcy. The District Court affirmed the Bankruptcy Court’s holding that the creditor violated the discharge injunction in the earlier case when it filed the proof of claim in the latter case. McLean has nothing to do with Rule 3001 and the case does not support the proposition that a violation of Rule 3001 gives rise to a cause of action. None of the cases cited by Critten in her brief support the proposition that the violation of Rule 3001 gives rise to an independent cause of action. Rather, the cited cases" }, { "docid": "4748533", "title": "", "text": "bankruptcy court, the district court reviews factual findings for clear error and reviews conclusions of law de novo. In re Bonnett, 895 F.2d 1155, 1157 (7th Cir.1989). I. Appeal of the Bank of Bellwood. The issue in Bellwood’s appeal is whether the bankruptcy court properly disallowed Bellwood’s claim sua sponte for failure to comply with Bankruptcy Rule 3001 when the Trustee’s only objection to the creditor’s claim is that the claim is avoidable under section 547(b), not that it is an invalid claim or that there is insufficient proof of such claim. The court concludes that the bankruptcy court erred when it disallowed Bellwood’s claim without first providing sufficient opportunity for Bell-wood to amend its proof of claim and proceed with its burden of proving its claim. Bankruptcy Rule 3001(c) requires a creditor to attach a writing to its proof of claim if the creditor bases its claim on a writing, and Rule 3001(d) requires a creditor to accompany a proof of claim with evidence that the creditor perfected a security interest if it claims a security interest in property of the debtor. Compliance with the rule allows the proof of claim to constitute pri-ma facie evidence of the validity of the claim. Fed.R.Bankr.P. 3001(f). There is no authority for the proposition that the failure to attach documents to a proof of claim requires the bankruptcy court to disallow the claim on that basis. See In re Steele, No. 91-1384-K, No. 91-1386-K, No. 91-1387-K, 1992 WL 122756, 1992 U.S.Dist. LEXIS 8494 (D.Kan. May 29, 1992) (no support for the position that the failure to include attachments to proof of claim is a “permanent, incurable defect which deprives the claimants of the presumption created by Rule 3001(f)”; claimants had submitted four proofs of claims, one of which failed to contain supporting documents). The rule merely provides that a proof of claim does not constitute prima facie evidence of the claim’s validity unless the proof of claim complies with the rules and sets forth facts necessary to support the claim. 8 Collier on Bankruptcy 3001-22 (1992). Thus, the proper procedure for the" }, { "docid": "11562774", "title": "", "text": "and none which the Court has found by conducting its own research support the proposition that a debtor may sue a creditor and recover damages for the failure to comply with Rule 3001. A recent case from the Eastern District of Tennessee is of interest: In re Wheeler, Case No. 12-12454, 2013 WL 2404003 (Bankr.E.D.Tenn. May 31, 2013). In Wheeler, a debtor objected to a claim filed by Quantum contending that Quantum’s claim failed to comply with Rule 3001. The only significant difference between Wheeler and the case at bar is that in Wheeler the debtor objected with specificity as to how he thought Quantum’s claim was deficient under Rule 3001. The court in Wheeler, citing its decision in Gorman, found that the failure to comply with Rule 3001 was not a sufficient basis upon which to disallow a claim. Critten alleges in Count II of her Amended Complaint that by violating Rule 3001, Quantum has committed a contempt of court. Contempt is the willful disobedience of a court order. Georgia Power Co. v. NLRB, 484 F.3d 1288, 1291 (11th Cir. 2007); McGregor v. Chierico, 206 F.3d 1378, 1383 (11th Cir.2000); Cook v. Ochsner Foundation Hospital, 559 F.2d 270, 272 (5th Cir.1977). There is no support for the proposition that a debtor may bootstrap a technical rule violation to a contempt of court. As Critten has not identified an order of this Court which she believes Quantum has violated, it follows that there can be no contempt of court. Examination of Bankruptcy Rule 3001 does not indicate any intention to create a private right of action. Rule 3001 is a claims processing rule intended to aid the Court in determining whether a given bankruptcy claim should be allowed. A properly filed proof of claim is prima facie evidence that a creditor has a valid claim. Rule 3001(f). It follows that a proof of claim which runs afoul of the rule is not entitled to a presumption of validity. The remedy provided at Rule 3001(c)(2)(D) deals exclusively with the claims allowance process within a bankruptcy case. To infer a free standing" }, { "docid": "11562776", "title": "", "text": "cause of action from this provision would be to stretch the rule beyond its breaking point. C. Count III of the Amended Complaint fails to state a claim as the adoption of an Official Form does not give rise to a private right of action One who hopes to get paid in a bankruptcy proceeding must file a proof of claim. 11 U.S.C. § 501. One who files a proof of claim in a bankruptcy case is required to use Official Form B 10 as prescribed by the Judicial Conference of the United States. Rules 3001(a), 9009. Form B 10 requires that it be signed by the creditor or an appropriate representative. Immediately above the signature line the following certification is called for: “I declare under penalty of perjury that the information provided in this claim is true and correct to the best of my knowledge, information and reasonable belief.” One who files a false claim is subject to criminal prosecution. 18 U.S.C. §§ 152 and 3571. None of this is to say that there is a private right of action for not filling out the form properly. In Part III(B), supra, the Court discussed why there is no private right of action for the failure to strictly comply with Rule 3001. That discussion is also appropriate here. TV. CONCLUSION The Plaintiffs complaint is dismissed because it fails to state a claim for which relief may be granted. First, Critten alleges in general terms a violation of Rule 3001 but her complaint is deficient because she does not allege any facts showing a violation. Second, even she had alleged that Quantum violated Rule 3001, it does not follow that there is a private right of action for such a violation. The consequence resulting from the failure to comply with Rule 3001 is to strip the claim of its-prima facie validity but not necessary disallow the claim, and certainly not provide a private right of action for damages. Third, to the extent that Critten seeks disallowance of Quantum’s claim, that is moot because the Court has, in proceedings in the main" }, { "docid": "11562778", "title": "", "text": "bankruptcy case, already sustained Critteris objection and disallowed the claim. Fourth, to the extent that Critten seeks remedies for contempt of court, she has failed to identify any order of the Court which Quantum has flouted. The violation of a procedural rule is not contempt of court. Assuming that all the facts pled by Critten are true, she has failed to state a claim for which relief may be granted. Accordingly, the Amended Complaint should be dismissed with prejudice. The Court will enter a separate order to this effect. . Critten alleged in her original complaint that Quantum filed a claim which was barred . by the statute of limitations and therefore a violation of the Fair Debt Collection Practices Act (FDCPA). 5 U.S.C. § 1692. (Doc. 1). When Critten amended her complaint she abandoned her FDCPA claim, claiming instead that Quantum violated Bankruptcy Rule 3001 and Form B10. (Doc. 14). In light of Critten’s abandonment of her FDCPA claim, the Court need not consider it now. . Critten alleged in her objection to Quantum’s claim that it was barred by the statute of limitations. Her act of objecting again, under another theory, is probably barred by the doctrine of claim preclusion. As Count I is moot, the Court need not reach the question of claim preclusion. . In Paragraph 12 of the Amended Complain, Critten makes reference to the Statement of Account attached to Quantum's proof of claim, however, this reference purports to show that the claim is barred by the statute of limitations and not that the proof of claim fails to comply with Rule 3001. . This decision in Thigpen makes reference to an earlier unpublished decision of the Court denying a motion to dismiss. To gain an understanding of what was going on in the published decision, one must read the earlier unpublished decision. (Bankr.S.D. Ala. Decision dated May 25, 2004) (Adv.Pro.04-1035)." }, { "docid": "11562760", "title": "", "text": "claim contending that it was barred by the statute of limitations. (Case No. 14-10944, Doc. 17). Under this Court’s local rules, Quantum’s response was due in 30 days. LBR 3001-1. As Quantum did not file a timely response, the Court sustained Critten’s objection by default by its order dated August 13, 2014. (Case No. 14-10944, Doc. 27). On October 15, 2014, Quantum moved for reconsideration of the order sustaining Critten’s objection to its claim. (Case No. 14-10944, Doc. 45). The Court denied the motion by its order of November 25, 2014. (Case No. 14-10944, Does. 50, 51). In the meantime, on July 18, 2014, Crit-ten filed a complaint initiating this Adversary Proceeding. (Doc. 1). Critten amended her complaint on October 5, 2014. (Doc. 14). Quantum promptly answered the Amended Complaint (Doc. 15) and then doubled back and moved for judgment on the pleading. (Doc. 27). II. JURISDICTION AND PROCEDURAL SETTING A. Jurisdiction This Court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1334(b). This is a core proceeding within the mean ing of 28 U.S.C. § 157(b)(2)(B). This is a final order. B. Procedural Setting This Adversary Proceeding is before the Court on a Motion for Judgment on the Pleadings. Both parties assert that the Court is to use the same standard as it would on ruling on a motion to dismiss for failure to state a claim. Robert v. Abbett, Case No. 3:08-CV-329-WKW, 2009 WL 902488 (M.D.Ala. Mar. 31, 2009) That standard is as follows: A pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief ... The pleading standard Rule 8 announces does not require detailed factual allegations but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation ... A pleading that offers labels and conclusion or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to" }, { "docid": "11562763", "title": "", "text": "fails to state sufficient facts to show that Quantum has violated Rule 3001. In Count I of her Amended Complaint (Doc. 14), Critten seeks the disallowance of Quantum’s claim on the grounds that it failed to comply with the requirements of Bankruptcy Rule 3001. Count I is deficient for two reasons. First, in light of this Court’s Order of August 13, 2014, sustaining Critten’s Objection to Claim, thereby disallowing Quantum’s claim, Count I should be denied as moot. Second, as Critten does not allege any facts in her Amended Complaint in support of her contention that Quantum’s Proof of Claim violates Bankruptcy Rule 3001; she fails to state a claim. Third, even if Critten were to allege sufficient facts to show a Rule 3001 violation, it does not follow that a bankruptcy claim should be disallowed merely because a creditor failed to observe the rule. 1. Count I is moot. Critten’s request, in Count I of her Amended Complaint, is to disallow Quantum’s claim in her bankruptcy case. As that has already been done, it need not be done again. The mootness doctrine arises out of the requirement that there must be a live case or controversy for a Federal Court to take jurisdiction over a proceeding. BankWest, Inc. v. Baker, 446 F.3d 1358, 1363-64 (11th Cir.2006) (holding that case which becomes moot must be dismissed for want of a case or controversy); ITT Rayonier Inc. v. U.S., 651 F.2d 343, 345 (5th Cir.1981); Florida Board of Bus. Reg. v. NLRB, 605 F.2d 916, 918-19 (5th Cir.1979) (holding that an action becomes moot when “the issues presented are no longer ‘live’ ”). In response to Quantum’s mootness argument, Critten cites the case of McBride v. CitiMortgage (In re McBride), Civ. No. 10 MC 3498-MHT, 2010 WL 1688017 (M.D.Ala. 4/23/2010). (Doc. 32, p. 3). In McBride, the District Court denied Defendant CitiMortgage’s motion to withdraw the .reference. The underlying claim in McBride was that CitiMortgage used false affidavits to obtain relief from the automatic stay and ultimately to wrongfully foreclose on the Debtor’s home. McBride does not in any way, shape," } ]

[ { "docid": "22589052", "title": "", "text": "v. Pozzi, 352 F.3d 79 (2d Cir.2003); Corona v. Lunn, No. 00 Civ. 7330(GEL), 2002 WL 550963 (S.D.N.Y. April 11, 2002), aff'd, 56 Fed.Appx. 20, 2003 WL 187199 (2d Cir. Jan. 23, 2003) (table decision), and concluded that the factual similarities of these cases could support a jury finding that the Westches-ter County DOC had a departmental practice or policy of bringing false charges against Westchester County corrections officers. Finally, with respect to the false arrest claim against the County, the district court held that, because Pozzi was a policy maker of the County and other defendants might also be policy makers, a jury could find that Escalera’s arrest was part of a custom of the municipality. This interlocutory appeal followed. II. DISCUSSION Jurisdiction While we ordinarily lack jurisdiction to review a denial of summary judgment, see Golino v. City of New Haven, 950 F.2d 864, 868 (2d Cir.1991), an exception exists where the motion is filed on the basis of qualified immunity, Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir.2003). Such “jurisdiction is nevertheless limited to circumstances where the qualified immunity defense may be established as a matter of law.” Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir.1992). Our review extends to whether a given factual dispute is “material” for summary judgment purposes, id., but we may not review whether a dispute of fact identified by the district court is “genuine.” See Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Salim v. Proulx, 93 F.3d 86, 90 (2d Cir.1996). A “district court’s mere assertion that disputed factual issues exist,” however, is not “enough to preclude an immediate appeal.” Salim, 93 F.3d at 89. Rather, we have jurisdiction to review a denial of qualified immunity to the extent it can be resolved “on stipulated facts, or on the facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff that the trial judge concluded the jury might find.” Id. False Arrest Claim To establish a claim for false arrest under 42 U.S.C. § 1983, a plaintiff must show" } ]

[ { "docid": "11385049", "title": "", "text": "U.S.C. § 1291. The collateral order doctrine, however, allows review of a district court’s denial of summary judgment on the ground that the movant was not entitled to qualified immunity \" 'to the extent that the district court has denied the motion as a matter of law.' ” Moore v. Andreno, 505 F.3d 203, 207 (2d Cir.2007) (quoting O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 38 (2d Cir.2003)). This exception to the ordinary rule of finality effectuates the privilege’s underlying purpose, which is not merely to provide a defense to liability, but to provide immunity from suit. Walczyk v. Rio, 496 F.3d 139, 153 (2d Cir.2007). The existence of probable cause and a defendant’s entitlement to qualified immunity may be determined as a matter of law to the extent that the issues may be resolved on undisputed facts establishing the pertinent events and the knowledge of the officer at the time of the arrest. See Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 760-61 (2d Cir.2003). The principal discrepancy between the parties’ versions of the events is with respect to whether Finigan told Marshall that she had called a locksmith to let her into the premises before or after she was arrested. Because this issue is irrelevant to Marshall’s claims, our jurisdiction is not in question. See Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.2004) (“[W]e have jurisdiction to review a denial of qualified immunity to the extent it can be resolved 'on stipulated facts, or on the facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff that the trial judge concluded the jury might find.' ” (quoting Salim v. Proulx, 93 F.3d 86, 89 (2d Cir.1996))). . A plaintiff must also show that the right violated was clearly established. The Supreme Court recently held that while lower courts are no longer required to address these prongs in any particular order, it recognized that it is \"often beneficial” to do so. Pearson v. Callahan, 555 U.S. -, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). Doing" }, { "docid": "22929818", "title": "", "text": "motions for summary judgment based on qualified immunity and its decision not to apply the qualified immunity defense to dismiss plaintiffs’ state-law claims. The plaintiffs timely cross-appeal from the district court’s grant of summary judgment to Walsh and McMahon, the court’s dismissal of their equal protection, conspiracy, indifference to medical needs and infliction of emotional distress claims, and the court’s sua sponte dismissal of several defendants and other legal claims. DISCUSSION I. Jurisdiction over Defendants’ Appeal The denial of a motion for summary judgment is normally not “immediately appealable because such a decision is not a final judgment.” O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 38 (2d Cir.2003) (citing 28 U.S.C. § 1291). “Under the collateral order doctrine, however, the denial of a qualified-immunity-based motion for summary judgment is immediately appealable to the extent that the district court has denied the motion as a matter of law, although not to the extent that the defense turns solely on the resolution of questions of fact.” Id. (citing Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)). In deed, where, as here, defendants have accepted the plaintiffs’ version of the facts for purposes of the appeal, they may challenge the district court’s rejection of a qualified-immunity-based motion for summary judgment by arguing that the facts asserted by the plaintiffs “entitle [them] to the defense of qualified immunity as a matter of law.” Salim v. Proulx, 93 F.3d 86, 91 (2d Cir.1996). We accordingly have appellate jurisdiction over the limited question of law presented by defendants’ appeal. II. Qualified Immunity Against this backdrop, we review de novo a district court’s denial of a summary judgment motion based on a defense of qualified immunity. Savino v. City of New York, 331 F.3d 63, 71 (2d Cir.2003). Our review at this juncture is limited to “circumstances where the qualified immunity defense may be established as a matter of law.” Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir.1992). Although we must examine “whether a given factual dispute is ‘material’ for summary judgment purposes, we may not" }, { "docid": "23201405", "title": "", "text": "KEARSE, Circuit Judge. Defendant Robert J. Vargo, a Sergeant in the Vermont State (“State”) Police, appeals from an order of the United States District Court for the District of Vermont, J. Garvan Murtha, then -Chief Judge, denying his motion to alter or amend an order that denied his motion pursuant to Fed. R.Civ.P. 56 for summary judgment dismissing, on the basis of qualified immunity, the claim of plaintiff Kenneth O’Bert (“plaintiff’), brought under 42 U.S.C. § 1983 as administrator of the estate of Richard O’Bert (“O’Bert”), for use of excessive force in the shooting death of O’Bert. The district court denied Vargo’s motion for summary judgment on that claim, ruling that there were genuine issues of material fact to be tried as to the circumstances confronting Vargo after he entered O’Bert’s trailer home; and it denied Vargo’s motion to alter that denial, ruling that on plaintiffs version of the facts it was not objectively reasonable to subject O’Bert to deadly force. On appeal, Vargo argues that he was entitled to judgment as a matter of law on the basis of the undisputed facts and any disputed facts construed favorably to plaintiff. Plaintiff cross-appeals from the summary dismissal, on the ground of qualified immunity, of so much of the complaint as asserted claims under § 1983 against Vargo and defendant John G. Fagerholm, III, likewise a State Police Sergeant, for unlawful entry into O’Bert’s home. The court entered a partial final judgment pursuant to Fed.R.Civ.P. 54(b) as to the unlawful entry claims, stating this Court would thereby have the entire case before it since Vargo could take an immediate appeal with respect to the excessive force claim. For the reasons that follow, we affirm the order of the district court that is the subject of the appeal by Vargo; we dismiss the cross-appeal because the partial final judgment did not comply with the requirements of Rule 54(b) and was improvidently entered. I. BACKGROUND This action has its origin in a complaint received by the State Police at approximately 9:23 p.m. on April 8, 2000, that a man — O’Bert—was beating a" }, { "docid": "17455477", "title": "", "text": "claims. Defendants Wojcik and Savage filed this interlocutory appeal seeking review of the district court’s order denying qualified immunity. On July 2, 2014, a motions panel of this court denied without prejudice Plaintiffs’ motion to dismiss for lack of jurisdiction. See Nat’l Indus., Inc. v. Republic Nat’l Life Ins. Co., 677 F.2d 1258, 1262 (9th Cir.1982) (stating that a merits panel may consider appellate jurisdiction despite an earlier denial of a motion to dismiss). II. Standard of Review We review de novo a challenge to our appellate jurisdiction over an interlocutory appeal. Bingue v. Prunchak, 512 F.3d 1169, 1172 (9th Cir.2008). We also review de novo an interlocutory appeal from the denial of summary judgment based on qualified immunity. Kennedy, 439 F.3d at 1059. III. Appellate Jurisdiction Plaintiffs contend that we lack jurisdiction over this interlocutory appeal because the district court based its denial of summary judgment on purely factual grounds. The individual Defendants, on the other hand, contend that we have jurisdiction over the “purely legal” question of whether, “assuming the factually-supported version of events offered by [Plaintiffs] is correct,” the district court erred in denying qualified immunity. We agree with the individual Defendants. In general, we have jurisdiction to hear appeals only from “final decisions.” 28 U.S.C. § 1291; Johnson v. Jones, 515 U.S. 304, 309, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). However, the Supreme Court has created an exception to the final judgment rule for certain interlocutory appeals when the district court has denied a motion for summary judgment based on qualified immunity. “[A] district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Not every interlocutory appeal from a denial of a motion for summary judgment based on qualified immunity is immediately appealable. The Supreme Court has distinguished between (1) an appeal raising the “purely legal” question of whether the facts" }, { "docid": "4394890", "title": "", "text": "(N.D.N.Y. June 9, 2008). On June 17, 2008, the defendants petitioned the district court for leave to appeal from the March 28, 2008, memorandum opinion and order. The court denied leave to appeal. On October 1, 2008, we concluded that we had jurisdiction over an appeal of the March 28 order to the extent that it denied Novarro qualified immunity on the false arrest claim, and directed the Clerk of the Court to issue a briefing schedule for an appeal on the qualified immunity question. The sole question on appeal, then, is whether Novarro is entitled to qualified immunity on the false arrest claim. DISCUSSION I. Jurisdiction and Standard of Review “As a general rule, the denial of summary judgment is not immediately appealable.” Finigan v. Marshall, 574 F.3d 57, 60 n. 2 (2d Cir.2009) (citing 28 U.S.C. § 1291). “The collateral order doctrine, however, allows review of a district court’s denial of summary judgment on the ground that the movant was not entitled to qualified immunity to the extent that the district court has denied the motion as a matter of law.” Id. (internal quotation marks omitted). Our jurisdiction is limited such that we may only review Novarro’s assertion of qualified immunity based on “stipulated facts, facts accepted for purposes of the appeal, or the plaintiffs version of the facts that the district court deemed available for jury resolution.” Kelsey v. County of Schoharie, 567 F.3d 54, 60 (2d Cir.2009) (internal quotation marks omitted). While “we must examine whether a given factual dispute is ‘material’ for summary judgment purposes, we may not review whether a dispute of fact identified by the district court is ‘genuine.’ ” Jones v. Parmley, 465 F.3d 46, 55 (2d Cir.2006) (internal quotation marks omitted). Summary judgment should be granted where “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The court construes all evidence in the light most favorable to the non-moving party, drawing all inferences and resolving all ambiguities in his favor. See, e.g., LaSalle Bank Nat’l" }, { "docid": "11284661", "title": "", "text": "appeal on December 21, 2015. On February 29, 2016, the district court entered a final judgment in accordance with its order pursuant to Federal Rule of Civil Procedure 54(b), finding no just reason for delay. Heaney appealed on March 4, 2016. Black appealed the denial of summary judgment on March 7, 2016. Roberts filed another notice of appeal on March 14, 2016. II. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction over final decisions pursuant to 28 U.S.C. § 1291. While not a final decision, “the denial of a motion for summary judgment based upon qualified immunity is a collateral order capable of immediate review.” Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc). We have explained that when a “district court denies an official’s motion for summary judgment predicated upon qualified immunity, the district court can be thought of as making two distinct determinations, even if only implicitly.” Id. The court is first deciding that “a certain course of conduct would, as a matter of law, be objectively unreasonable in light of clearly established law.” Id. “Second, the court decides that a genuine issue of fact exists regarding whether the defendant(s) did, in fact, engage in such conduct.” Id. We do not have jurisdiction to review the second type of determination. Id. Instead, “we review the complaint and record to determine whether, assuming that all of [the plaintiffs] factual assertions are true, those facts are materially sufficient to establish that defendants acted in an objectively unreasonable manner.” Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000). “Within this limited appellate jurisdiction, ‘[t]his court reviews a district court’s denial of a motion for summary judgment on the basis of qualified immunity in a § 1983 suit de novo.’” Good v. Curtis, 601 F.3d 393, 398 (5th Cir. 2010) (quoting Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009)). III. DISCUSSION “Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Reichle v. Howards, 566 U.S." }, { "docid": "23313986", "title": "", "text": "the moving party must show that there are no genuine issues of material fact, and that when any disputed facts are viewed in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Kerman v. City of New York, 261 F.3d 229, 234-35 (2d Cir.2001). Breen argues to us that he was entitled to summary judgment because, based on the undisputed facts in the case, (1) no constitutional violation occurred since his conduct in these circumstances was objectively reasonable; and (2) in any event, he was entitled to qualified immunity because he reasonably believed that his conduct was lawful. Breen also contends that the failure of both the magistrate judge and the district judge to conduct a Saucier analysis on the qualified immunity defense mandates reversal and remand. The Town argues that judgment should be entered in its favor because if Breen is not liable, it cannot be held liable either. Cowan argues first that we do not have jurisdiction over this interlocutory appeal. On the merits, Cowan contends that the evidence is disputed, and assuming her version of the facts and construing all inferences in her favor, as we must on this interlocutory appeal from a denial of defendants’ motion for summary judgment, a reasonable juror could conclude that Breen’s use of force was objectively unreasonable. Cowan also claims that the failure of the magistrate and the district judge to conduct a full Saucier analysis does not constitute reversible error. We consider each of these arguments in turn, reviewing the district court’s decision to deny summary judgment de novo. See Kerman, 261 F.3d at 234. A. Jurisdiction Over Interlocutory Appeal Ordinarily, “the denial of a motion for summary judgment is not immediately appealable because such a decision is not a final judgment.” O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 38 (2d Cir.2003). But interlocutory appeals are encouraged in qualified immunity cases because, as the Supreme Court has emphasized, the qualified immunity issue should be resolved early in the proceedings since qualified immunity protects an officer" }, { "docid": "22929817", "title": "", "text": "alia, violated their rights to freedom of speech, religion and assembly, used excessive force, engaged in a conspiracy to violate their rights, violated their right to equal protection, were deliberately indifferent to plaintiffs’ medical needs and inflicted severe emotional distress. They also filed claims against NYSP Superintendent James W. McMahon, Onondaga County Sheriff Kevin Walsh, the County of Onondaga and the Sheriffs Department. After several years of litigation, the district court denied the defendants’ motions for summary judgment on the basis of qualified immunity on plaintiffs’ First Amendment and excessive force claims, finding that disputed factual issues remained to be resolved before the court could rule on the qualified immunity issue. Jones, 2005 WL 928667, at *9-*12. The court granted Walsh and McMahon’s respective motions for summary judgment. Id. at *6. The court also granted summary judgment sua sponte in favor of Onondaga County and its Sheriffs Department, dismissed several of plaintiffs’ other claims and dismissed several defendants from the lawsuit. Id. at *2-*7. The defendants timely appeal from the district court’s denial of their motions for summary judgment based on qualified immunity and its decision not to apply the qualified immunity defense to dismiss plaintiffs’ state-law claims. The plaintiffs timely cross-appeal from the district court’s grant of summary judgment to Walsh and McMahon, the court’s dismissal of their equal protection, conspiracy, indifference to medical needs and infliction of emotional distress claims, and the court’s sua sponte dismissal of several defendants and other legal claims. DISCUSSION I. Jurisdiction over Defendants’ Appeal The denial of a motion for summary judgment is normally not “immediately appealable because such a decision is not a final judgment.” O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 38 (2d Cir.2003) (citing 28 U.S.C. § 1291). “Under the collateral order doctrine, however, the denial of a qualified-immunity-based motion for summary judgment is immediately appealable to the extent that the district court has denied the motion as a matter of law, although not to the extent that the defense turns solely on the resolution of questions of fact.” Id. (citing Behrens v. Pelletier, 516 U.S." }, { "docid": "11385048", "title": "", "text": "those suspected of wrongdoing, and not to finally determine guilt through a weighing of the evidence.” Krause v. Bennett, 887 F.2d 362, 372 (2d Cir.1989). The facts available at the time of the arrest need only cause a person of reasonable caution to believe that a crime had been or was about to be committed, a threshold that was easily met here. CONCLUSION For the foregoing reasons, we conclude Marshall had probable cause to arrest Fin igan. We therefore vacate the district court’s judgment with respect to that claim and remand for proceedings consistent with this opinion. . The district court dismissed the abuse of process claim on the ground that the undisputed facts showed that Marshall had not issued any legal process against Finigan. This portion of the district court’s decision is not before us on this appeal. The district court also denied Marshall's motion for leave to apply for attorney’s fees pursuant to 42 U.S.C. § 1988. . As a general rule, the denial of summary judgment is not immediately appealable. See 28 U.S.C. § 1291. The collateral order doctrine, however, allows review of a district court’s denial of summary judgment on the ground that the movant was not entitled to qualified immunity \" 'to the extent that the district court has denied the motion as a matter of law.' ” Moore v. Andreno, 505 F.3d 203, 207 (2d Cir.2007) (quoting O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 38 (2d Cir.2003)). This exception to the ordinary rule of finality effectuates the privilege’s underlying purpose, which is not merely to provide a defense to liability, but to provide immunity from suit. Walczyk v. Rio, 496 F.3d 139, 153 (2d Cir.2007). The existence of probable cause and a defendant’s entitlement to qualified immunity may be determined as a matter of law to the extent that the issues may be resolved on undisputed facts establishing the pertinent events and the knowledge of the officer at the time of the arrest. See Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 760-61 (2d Cir.2003). The principal" }, { "docid": "20841259", "title": "", "text": "Court and the federal courts of appeals allow some interlocutory appeals from district court decisions rejecting defenses of qualified immunity as a “limited exception” to the final judgment rule, Grune v. Rodriguez, 176 F.3d 27, 32 (2d Cir.1999) (internal quotation marks omitted). A district court’s denial of qualified immunity on a summary judgment motion is an appealable final decision only “to the extent the denial turns on an issue of law.” McCullough v. Wyandanch Union Free Sch. Dist, 187 F.3d 272, 277 (2d Cir.1999); accord Mitchell, 472 U.S. at 530, 105 S.Ct. 2806. Appealable matters involve “disputes about the substance and clarity of pre-existing law,” not about “what occurred, or why an action was taken or omitted.” Ortiz v. Jordan, 562 U.S. 180, 131 S.Ct. 884, 892, 178 L.Ed.2d 703 (2011) (citing Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), and Johnson v. Jones, 515 U.S. 304, 317, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)). Where factual disputes persist, we may exercise appellate jurisdiction only for.the limited purpose of deciding whether, on the basis of “stipulated facts, or on the facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff that the trial judge concluded the jury might find, the immunity defense is established as a matter of law.” Salim v. Proulx, 93 F.3d 86, 90 (2d Cir.1996). Our review is thus limited to the defendant’s arguments that these “facts show either that he ‘didn’t do it’ or that it was objectively reasonable for him to believe that his action did not violate clearly established law.” Id. at 90-91. In considering these questions, “we will disregard any disputed facts or facts that contradict [the plaintiffs] version of events.” Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 761 (2d Cir.2003). And while “we have jurisdiction to determine whether the issue is material” to the legal issues properly before us, we may not review “whether it is genuine.” Bolmer v. Oliveira, 594 F.3d 134, 140-41 (2d Cir.2010) (emphasis in original); see also Droz v. McCadden, 580 F.3d 106," }, { "docid": "23313988", "title": "", "text": "from suit. Saucier, 533 U.S. at 200, 121 S.Ct. 2151. The denial of a motion for summary judgment on the ground of qualified immunity is thus immediately appealable, but only to the extent that the district court’s denial turns on an issue of law. See Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); Johnson v. Jones, 515 U.S. 304, 317-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Martinez v. Simonetti, 202 F.3d 625, 632 (2d Cir.2000). Plaintiff-appellee Cowan argues that we do not have jurisdiction over this interlocutory appeal because the district court’s denial of summary judgment was not based on an issue of law, but was based on a determination that genuine issues of material fact existed. However, even where the district court rules that material disputes of fact preclude summary judgment on qualified immunity, “we may still exercise interlocutory jurisdiction if the defendant contests the existence of a dispute or the materiality thereof, or ... contends that he is entitled to qualified immunity even under plaintiffs version of the facts.” Tierney v. Davidson, 133 F.3d 189, 194 (2d Cir.1998); see O’Bert, 331 F.3d at 38; Salim v. Proulx, 93 F.3d 86, 90-91 (2d Cir.1996). We therefore have jurisdiction over the appeal to the extent it is based on either the undisputed facts or the version of the facts presented by Cowan, and we will disregard any disputed facts or facts that contradict Cowan’s version of the events. See O’Bert, 331 F.3d at 39. B. The Qualified Immunity Test In Saucier v. Katz, 533 U.S. at 201-02, 205, 121 S.Ct. 2151, the Supreme Court made clear that in excessive force cases, claims of qualified immunity should be evaluated in the following manner. The threshold question is whether the facts, taken in the light most favorable to the plaintiff, show a constitutional violation. Id. at 201, 121 S.Ct. 2151; Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). The inquiry is whether the alleged use of excessive force was objectively reasonable. See Graham v. Connor, 490 U.S. 386, 397," }, { "docid": "23026185", "title": "", "text": "motion in part, and granted it in part. Demoret, 361 F.Supp.2d at 205. The court found plaintiffs had alleged sufficient evidence to establish a hostile work environment, id. at 200, and therefore denied defendants qualified immunity on this claim, id. at 205. With respect to the disparate treatment claims, the trial court held that Demoret had not shown disparate treatment because she was comparing herself to employees who were not similarly situated. Id. at 201. Demoret’s disparate treatment claim was accordingly dismissed. Id. at 205. At the same time, the district court reasoned, Pell had shown that she was paid less than the similarly situated male department heads as well as her subordinates. Id. at 201. For that reason, the trial court held that Pell’s disparate treatment claim could go forward, and consequently denied defendants’ assertion of qualified immunity. Id. at 202, 205. We now affirm, in part, and reverse and remand, in part. DISCUSSION Ordinarily, we have no jurisdiction to hear an immediate appeal from a district court order denying summary judgment because such an order is not a final decision. See 28 U.S.C. § 1291; O'Bert ex rel. Estate of O'Bert v. Vargo, 331 F.3d 29, 38 (2d Cir.2003). But, under the collateral order doctrine, the denial of a motion for summary judgment made by a government official based on his claim of qualified immunity is immediately appeal-able to the extent the district court denied the motion as a matter of law. Locurto v. Safir, 264 F.3d 154, 162 (2d Cir.2001). We review de novo a district court’s denial of summary judgment when the motion for such relief is made on qualified immunity grounds. Moore v. Vega, 371 F.3d 110, 114 (2d Cir.2004). We construe the facts in the light most favorable to the non-moving party, here plaintiffs Demoret and Pell. Zurich Am. Ins. Co. v. ABM Indus., Inc., 397 F.3d 158, 164 (2d Cir.2005). Summary judgment is appropriate only where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c)." }, { "docid": "22866874", "title": "", "text": "“a jury could find that the defendants lacked even arguable probable cause to believe that [Walczyk] had committed the crime of threatening or that the firearms to be seized were connected with criminal activity.” Id. at 390 (noting that ruling was consistent with Connecticut Appellate Court’s determination that affidavits “fell well short of establishing probable cause”). Nevertheless, the district court denied Elizabeth Walczyk’s cross-motion for summary judgment on the liability phase of her search warrant challenge, concluding that she had not shown that no reasonable juror could find defendants’ acts lawful. II. Discussion A. Jurisdiction and the Standard of Review Because the denial of a motion for summary judgment is not a final judgment, it is generally not immediately ap-pealable. See, e.g., Jones v. Parmley, 465 F.3d 46, 54 (2d Cir.2006). An exception obtains, however, when the denied motion was based on a claim of immunity, at least to the extent the immunity claim presents a “purely legal question.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (recognizing jurisdiction to review “purely legal question on which ... claim of immunity turns”); see O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 38 (2d Cir.2003) (observing that “[ujnder the collateral order doctrine ... the denial of a qualified-immunity-based motion for summary judgment is immediately appealable to the extent that the district court has denied the motion as a matter of law, although not to the extent that the defense turns solely on the resolution of questions of fact”); accord Jones v. Parmley, 465 F.3d at 54. The rationale for this exception is the law’s recognition that immunity shields a defendant from suit itself, not merely from liability. See Saucier v. Katz, 533 U.S. 194, 199, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (“The privilege is ‘an immunity from suit rather than a mere defense to liability; ... it is effectively lost if a case is erroneously permitted to go to trial.’ ” (quoting Mitchell v. Forsyth, 472 U.S. at 526, 105 S.Ct. 2806 (emphasis in original))). In this case, defendants’ appeal from the" }, { "docid": "23201423", "title": "", "text": "determine whether the officers’ story is consistent with other known\" facts”); Plakas v. Drinski, 19 F.3d 1143, 1147 (7th Cir.) (“in deadly force cases[,] ... where the officer defendant is the only witness left alive to testify[,] .... a court must undertake a fairly critical assessment of,” inter alia, “the officer’s original reports or statements ... to decide whether the officer’s testimony could reasonably be rejected at a trial”), cert. denied, 513 U.S. 820, 115 S.Ct. 81, 130 L.Ed.2d 34 (1994). Ordinarily, the denial of a motion for summary judgment is not immediately appealable because such a decision is not a final judgment. See 28 U.S.C. § 1291. Under the collateral order doctrine, however, the denial of a qualified-immunity-based motion for summary judgment is immediately appealable to the extent that the district court has denied the motion as a matter of law, although not to the extent that the defense turns solely on the resolution of questions of fact. See, e.g., Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); Johnson v. Jones, 515 U.S. 304, 313-318, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); In re State Police Litigation, 88 F.3d 111, 124 (2d Cir.1996). We have held that where the district court has denied a qualified-immunity-based motion for summary judgment on the ground that there are triable issues as to which party’s version of the facts is to be accepted, a defendant may pursue an immediate appeal if he adopts the plaintiffs version of the facts, contending that the facts asserted by the plaintiff “entitle [the defendant] to the defense of qualified immunity as a matter of law.” Salim v. Proulx, 93 F.3d at 91. C. The Merits of Vargo’s Appeal, Accepting Plaintiffs Version In light of the above principles and the record in this case, we affirm the district court’s denial of Vargo’s Rule 59(e) motion for several reasons. Preliminarily, we note that although Vargo purports to accept plaintiffs version of the facts (see, e.g., Vargo brief on appeal" }, { "docid": "23026186", "title": "", "text": "an order is not a final decision. See 28 U.S.C. § 1291; O'Bert ex rel. Estate of O'Bert v. Vargo, 331 F.3d 29, 38 (2d Cir.2003). But, under the collateral order doctrine, the denial of a motion for summary judgment made by a government official based on his claim of qualified immunity is immediately appeal-able to the extent the district court denied the motion as a matter of law. Locurto v. Safir, 264 F.3d 154, 162 (2d Cir.2001). We review de novo a district court’s denial of summary judgment when the motion for such relief is made on qualified immunity grounds. Moore v. Vega, 371 F.3d 110, 114 (2d Cir.2004). We construe the facts in the light most favorable to the non-moving party, here plaintiffs Demoret and Pell. Zurich Am. Ins. Co. v. ABM Indus., Inc., 397 F.3d 158, 164 (2d Cir.2005). Summary judgment is appropriate only where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). I Qualified Immunity Qualified immunity protects government officials from civil liability when performing discretionary duties “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In deciding whether qualified immunity applies, the threshold inquiry is whether the plaintiffs version of the facts “show[s] the officer’s conduct violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); accord Moore, 371 F.3d at 114. If no constitutional or statutory right was violated — construing the facts in favor of plaintiffs — we need not conduct further inquiries concerning qualified immunity. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. If on the other hand, “a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established.” Id. A defendant is entitled to qualified immunity only if he can show that," }, { "docid": "22866875", "title": "", "text": "to review “purely legal question on which ... claim of immunity turns”); see O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 38 (2d Cir.2003) (observing that “[ujnder the collateral order doctrine ... the denial of a qualified-immunity-based motion for summary judgment is immediately appealable to the extent that the district court has denied the motion as a matter of law, although not to the extent that the defense turns solely on the resolution of questions of fact”); accord Jones v. Parmley, 465 F.3d at 54. The rationale for this exception is the law’s recognition that immunity shields a defendant from suit itself, not merely from liability. See Saucier v. Katz, 533 U.S. 194, 199, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (“The privilege is ‘an immunity from suit rather than a mere defense to liability; ... it is effectively lost if a case is erroneously permitted to go to trial.’ ” (quoting Mitchell v. Forsyth, 472 U.S. at 526, 105 S.Ct. 2806 (emphasis in original))). In this case, defendants’ appeal from the district court’s denial of qualified immunity on plaintiffs’ search and arrest claims can be decided as a matter of law; accordingly, our jurisdiction is established. Although an interlocutory appeal would not be available from either the denial of Elizabeth Walczyk’s motion for summary judgment on her unlawful search claim or the district court’s dismissal of Walczyk’s excessive bail claim on the ground of absolute immunity, we elect to exercise pendent jurisdiction over both. “[W]e may exercise pendent jurisdiction over ... issues that are not ordinarily subject to interlocutory review only when: (1) they are ‘inextricably intertwined’ with the determination of qualified immunity; or (2) their resolution is ‘necessary to ensure meaningful review’ of the district court’s ruling on qualified immunity.” Jones v. Parmley, 465 F.3d at 64 (quoting Swint v. Chambers County Comm’n, 514 U.S. 35, 51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995)). As we explain further below, see infra at 164-65, Elizabeth Walczyk’s claim is “inextricably intertwined” with the determination of defendants’ entitlement to qualified immunity in that the same disputed factual issues" }, { "docid": "23313987", "title": "", "text": "the merits, Cowan contends that the evidence is disputed, and assuming her version of the facts and construing all inferences in her favor, as we must on this interlocutory appeal from a denial of defendants’ motion for summary judgment, a reasonable juror could conclude that Breen’s use of force was objectively unreasonable. Cowan also claims that the failure of the magistrate and the district judge to conduct a full Saucier analysis does not constitute reversible error. We consider each of these arguments in turn, reviewing the district court’s decision to deny summary judgment de novo. See Kerman, 261 F.3d at 234. A. Jurisdiction Over Interlocutory Appeal Ordinarily, “the denial of a motion for summary judgment is not immediately appealable because such a decision is not a final judgment.” O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 38 (2d Cir.2003). But interlocutory appeals are encouraged in qualified immunity cases because, as the Supreme Court has emphasized, the qualified immunity issue should be resolved early in the proceedings since qualified immunity protects an officer from suit. Saucier, 533 U.S. at 200, 121 S.Ct. 2151. The denial of a motion for summary judgment on the ground of qualified immunity is thus immediately appealable, but only to the extent that the district court’s denial turns on an issue of law. See Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); Johnson v. Jones, 515 U.S. 304, 317-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Martinez v. Simonetti, 202 F.3d 625, 632 (2d Cir.2000). Plaintiff-appellee Cowan argues that we do not have jurisdiction over this interlocutory appeal because the district court’s denial of summary judgment was not based on an issue of law, but was based on a determination that genuine issues of material fact existed. However, even where the district court rules that material disputes of fact preclude summary judgment on qualified immunity, “we may still exercise interlocutory jurisdiction if the defendant contests the existence of a dispute or the materiality thereof, or ... contends that he is entitled to qualified immunity even under plaintiffs version" }, { "docid": "23201424", "title": "", "text": "Johnson v. Jones, 515 U.S. 304, 313-318, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); In re State Police Litigation, 88 F.3d 111, 124 (2d Cir.1996). We have held that where the district court has denied a qualified-immunity-based motion for summary judgment on the ground that there are triable issues as to which party’s version of the facts is to be accepted, a defendant may pursue an immediate appeal if he adopts the plaintiffs version of the facts, contending that the facts asserted by the plaintiff “entitle [the defendant] to the defense of qualified immunity as a matter of law.” Salim v. Proulx, 93 F.3d at 91. C. The Merits of Vargo’s Appeal, Accepting Plaintiffs Version In light of the above principles and the record in this case, we affirm the district court’s denial of Vargo’s Rule 59(e) motion for several reasons. Preliminarily, we note that although Vargo purports to accept plaintiffs version of the facts (see, e.g., Vargo brief on appeal at 30 (“[accepting for purposes of this appeal that no time ... elapsed when Mr. O’Bert was out of the officers’ sight”); id. at 15 (“accepting Plaintiffs version of events”); id. at 27 (viewing the permissible inferences “in the light most favorable to the plaintiff’)), his brief on' appeal is replete with his own versions of the events. For example, detailing his own deposition testimony and that of Fagerholm, Vargo’s brief states that after the officers entered the trailer, O’Bert “disappeared down the hallway” (id. at 13); that according to Fagerholm, “O’Bert was ‘out of our view[ ] for ten or fifteen seconds’ ” (id. at 11); that according to Vargo, “O’Bert was out of his view for about one minute after he entered the trailer” (id.); that after the officers entered, “O’Bert had ample opportunity to access a gun” without being observed by the officers (id. at 13); that after reappearing following his alleged disappearance, O’Bert gave “the impression that he was armed” (id.); that Vargo shot O’Bert when O’Bert “swung around so fast" }, { "docid": "23627676", "title": "", "text": "Flynn’s motion for qualified immunity as to both constitutional claims. As to the Board, the district court held that the evidence was sufficient to suggest that the Board knew of Chief Flynn’s unconstitutional actions and “ratified” them. In the district court’s view, this ratification was sufficient for liability to attach under § 1983. The district court denied qualified immunity to the Board members, holding that the Board was required to do more than “rubber-stamp[ ]” Flynn’s decision to discipline the officers because the Board had more than adequate knowledge of Flynn’s possibly unconstitutional motivation. With regard to the Village, the district court held that, because the Board was the final policymaker for the Village, the Village could be liable for the actions of the Board. DISCUSSION I. Jurisdiction The denial of a motion for summary judgment is not usually immediately appealable. See 28 U.S.C. § 1291; O’Bert v. Vargo, 331 F.3d 29, 38 (2d Cir.2003). Under the “collateral order” doctrine, however, the denial of a motion for qualified immunity is immediately appealable to the extent that the denial turns only on a question of law. Poe v. Leonard, 282 F.3d 123, 131 (2d Cir.2002). In this case, the district court found that issues of material fact remained in dispute between the parties, including the defendants’ motivation for bringing charges against the plaintiffs. Thus, at least in part, the district court’s denial of summary judgment and its rejection of the defendants’ qualified immunity defense turns on disputed issues of fact, and we would ordinarily lack jurisdiction to review those denials here. Nevertheless, defendants may appeal from denials of qualified immunity if they are willing, for the purposes of appeal only, to pursue the appeal on the basis of stipulated facts or the facts as alleged by the plaintiff. Alternatively, the defendants may appeal if they assume that all the facts that the district court found to be disputed are resolved in the plaintiffs favor. Salim v. Proulx, 93 F.3d 86, 90(2d Cir.1996). While we may not inquire into the district court’s determination that there was sufficient evidence to create a jury" }, { "docid": "16797349", "title": "", "text": "court’s conclusion that a genuine issue of material fact precludes summary judgment here. See Dixon v. Kirkpatrick, 553 F.3d 1294, 1301 (10th Cir.2009) (“A district court’s determination that the record raises a ‘genuine issue of material fact,’ precluding summary judgment in favor of the defendants is not appealable even in a qualified immunity case.”). Himes contends, however, that even if he possessed a retaliatory motive when he spoke to DHS, he is nevertheless entitled to qualified immunity because he did not violate any clearly established constitutional right of McBeth’s. This presents strictly legal questions — whether his retaliatory conduct violated McBeth’s First Amendment rights, and, if so, whether such rights were clearly established at the time — and we may properly consider them on appeal. See Eaton v. Meneley, 379 F.3d 949, 955 (10th Cir.2004) (“Even if issues of fact exist, we have jurisdiction because we inquire only into the legal question whether [defendant’s] conduct, as alleged by the plaintiffs and construed in the light most favorable to them, would violate constitutional law.”); see also Johnson v. Martin, 195 F.3d 1208, 1214 (10th Cir.1999) (“[I]f a defendant’s appeal of the denial of a motion for summary judgment is based on the argument that, even under the plaintiffs version of the facts, the defendant did not violate clearly established law, then the district court’s summary judgment ruling is immediately appealable.”). b. Standard of review “We review de novo the district court’s denial of a summary judgment motion asserting qualified immunity.” Bowling, 584 F.3d at 963. Summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). In applying this standard, we construe the evidence in the light most favorable to McBeth as the nonmoving party. See Bowling, 584 F.3d at 964. “Because of the underlying purposes of qualified immunity, we review summary judgment orders deciding qualified immunity questions differently from other summary judgment decisions.” Id. (quoting Cortez v." } ]

[ { "docid": "1694107", "title": "", "text": "wife at his place of residence, and, if he failed to appear, sought his detention as a material witness, pursuant to New York CPL §§ 620.20 and 620.30 (McKinney 1971). Despite this, petitioner contends that, because Mr. Santiago was never served, and hence did not appear, he was denied due process and the Sixth Amendment right to compulsory process. This issue was unsuccessfully raised on appeal and, therefore, petitioner’s available state remedies have been exhausted. Both the Sixth Amendment and the due process clause of the Fifth Amendment guarantee the right of a defendant to process to compel the appearance at trial of witnesses who can provide relevant and material evidence for his defense. , When it appears, however, that the witness sought would not produce relevant and material testimony for the defense, no violation of the constitutional right occurs if the witness fails to appear. The petitioner bears the burden of showing that the witness he seeks will give relevant and material testimony. In the circumstances of this case, we think petitioner has failed to • establish any violation of his constitutional rights. First, he has failed to show that the defense made a genuinely diligent attempt to serve Mr. Santiago. Second, the defense failed to avail itself of any of the procedures for subpoenaing witnesses provided by the New York statutes. Third, no request was made by the defense that either the court or the prosecution aid it in attempting to produce Alfred Santiago. Finally, petitioner has totally failed to show that Alfred Santiago’s testimony would have been either relevant or material to the proceedings, or, for that matter, helpful to his defense. We can only speculate as to the content of Mr. Santiago’s testimony. At best, his testimony would have provided material for impeachment of Mrs. Santiago’s credibility. Since this function could have been adequately performed by cross-examination of Mrs. Santiago, any failure to produce Alfred Santiago cannot be said to have prejudiced petitioner. Petitioner has similarly failed to show that either Charles or Lenaire Santiago, the victim’s brother-in-law and his wife, would have produced any testimony" } ]

[ { "docid": "22316945", "title": "", "text": "Sixth and Fourteenth Amendment right to confront the witness Holm. The Court of Appeals sustained this contention, relying on this Court’s opinion in Barber v. Page, 390 U. S. 719 (1968). In Barber, a prospective witness for the prosecution in an Oklahoma felony trial was incarcerated in a federal prison in Texas. The court there said: “We start with the fact that the State made absolutely no effort to obtain the presence of Woods at trial other than to ascertain that he was in a federal prison outside Oklahoma. It must be acknowledged that various courts and commentators have heretofore assumed that the mere absence of a witness from the jurisdiction was sufficient ground for dispensing with confrontation on the theory that ‘it is impossible to compel his attendance, because the process of the trial Court is of no force without the jurisdiction, and the party desiring his testimony is therefore helpless.’ 5 Wigmore, Evidence § 1404 (3d ed. 1940). “Whatever may have been the accuracy of that theory at one time, it is clear that at the present time increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law. For example, in the case of a prospective witness currently in federal custody, 28 U. S. C. §2241 (c)(5) gives federal courts the power to issue writs of habeas corpus ad testificandum at the request of state prosecu-torial authorities. [Citations omitted.] In addition, it is the policy of the United States Bureau of Prisons to permit federal prisoners to testify in state court criminal proceedings pursuant to writs of habeas corpus ad testificandum issued out of state courts. . . . “In this case the state authorities made no effort to avail themselves of either of the above alternative means of seeking to secure Woods’ presence at peti tioner’s trial.” (Footnotes omitted.) Id., at 723-724. Because the State had made no attempt to use one of these methods to obtain the attendance of the witness at trial, the Court reversed the conviction on that" }, { "docid": "20813736", "title": "", "text": "42 S.Ct. 309, 66 L.Ed. 607], supra, and Ex parte Aubert, D. C., 51 F.2d 136. The privileges granted by this flexible rule of comity should and must be respected by the sovereignty to which it is made available, and this respectful duty is reciprocal, whether federal or state, because neither sovereignty has the power to override it. Under the free exercise of this rule, no right or immunity granted by the constitution, laws, or treaties of the United States, is invaded or impaired.” And, more particularly, in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (724), the Supreme Court stated: “For example, in the case of a prospective witness currently in federal custody, 28 U.S.C. § 2241(c) (5) gives federal courts the power to issue writs of habeas corpus ad testificandum at the request of state prosecutorial authorities. See Gilmore v. United States, 129 F.2d 199, 202 (C.A. 10th Cir. 1942); United States v. McGaha, 205 F.Supp. 949 (D.C.E.D.Tenn.1962). In addition, it is the policy of the United States Bureau of Prisons to permit federal prisoners to testify in state court criminal proceedings pursuant to writs of habeas corpus ad testificandum issued out of state courts. Cf. Lawrence v. Willingham, 373 F.2d 731 (C.A. 10th Cir. 1967) (habeas corpus ad prosequendum).” (Emphasis supplied.) From the extracts of the quoted decision, two underlying principles may be deduced. No sovereign power may interfere with, or lay claim to, the custody of a prisoner legally incarcerated in the jails of another sovereign power, except that upon a proper showing, and as a matter of comity, one sovereign power will permit another sovereign power to have temporary custody of a prisoner then in the jails of the former either to stand trial, or testify in a trial to be conducted in the Courts of the latter. Here, Carney is in a federal prison in Lewisburg, Pa., and we have a petition on behalf of defendant’s counsel for the issuance of a writ of habeas corpus ad testificandum for the delivery of Carney by the federal Marshal to testify in" }, { "docid": "6129178", "title": "", "text": "expenses. For a defendant who is financially unable to pay these costs, Rule 17(b) requires the court to subpoena witnesses on that defendant’s behalf “upon a satisfactory showing ... that the presence of the witness is necessary to an adequate defense.” In such instances, the government bears the cost of securing the attendance of the witnesses. See Fed.R. Crim.P. 17(b). Appellant does not challenge the requirement that financially able criminal defendants must bear the cost of bringing their own witnesses to the trial, but rather he alleges that the amounts he was charged here were excessive, and thereby inhibited his right to compulsory process. We cannot agree. First, appellant never raised this contention in the district court. We do not ordinarily consider claims raised for the first time on appeal. United States v. Silva, 611 F.2d 78, 80 (5th Cir.1980). Garmany’s failure to pursue this claim in the district court also leaves us without a record for evaluating the factual basis for his contentions. As noted above, Rule 17(b) provides that a defendant who is unable to pay associated costs of producing witnesses can still avail himself of the court’s subpoena power. As a threshold matter, however, there must be a satisfactory showing of financial hardship. United States v. Sprouse, 472 F.2d 1167 (6th Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973). In the court below, not only did Garmany’s attorney fail to make any proffer of inability to pay, he stated that Garmany was prepared to tender approximately $8,000 to obtain the necessary inmate-witnesses. As far as we can deem from the record, Garmany in fact paid this amount. Moreover, Garmany was represented at trial by retained counsel, indicating at least that he was not indigent. Aside from this deficiency, appellant’s argument does not warrant reversal of his convictions. In United States v. Valenzuela, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), the Supreme Court held that deportation of potential witnesses who had entered the United States illegally did not violate a criminal defendant’s sixth amendment right to compulsory process, where the" }, { "docid": "6129177", "title": "", "text": "Garmany states that due to his limited resources, he was forced to be selective in choosing among several essential defense witnesses. This in turn hindered the defense Garmany was able to present at his trial and, according to the appellant, requires reversal of his convictions. To be sure, a criminal defendant’s sixth amendment right to compulsory process is a fundamental component of due process itself. Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 1922-1923, 18 L.Ed.2d 1019 (1967); United States v. Garner, 581 F.2d 481, 488 (5th Cir.1978). To effectively implement this constitutional guarantee, the accused has the right to subpoena witnesses on his or her own behalf to testify at a trial. Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev., 567, 587 (1978). Federal Rule of Criminal Procedure 17 governs the issuance of subpoenas in criminal cases, and Rule 17(d) prescribes that service of any subpoena, except those issued on behalf of the United States, must be accompanied by payment of witness fees and travel expenses. For a defendant who is financially unable to pay these costs, Rule 17(b) requires the court to subpoena witnesses on that defendant’s behalf “upon a satisfactory showing ... that the presence of the witness is necessary to an adequate defense.” In such instances, the government bears the cost of securing the attendance of the witnesses. See Fed.R. Crim.P. 17(b). Appellant does not challenge the requirement that financially able criminal defendants must bear the cost of bringing their own witnesses to the trial, but rather he alleges that the amounts he was charged here were excessive, and thereby inhibited his right to compulsory process. We cannot agree. First, appellant never raised this contention in the district court. We do not ordinarily consider claims raised for the first time on appeal. United States v. Silva, 611 F.2d 78, 80 (5th Cir.1980). Garmany’s failure to pursue this claim in the district court also leaves us without a record for evaluating the factual basis for his contentions. As noted above, Rule 17(b) provides that a defendant who is" }, { "docid": "3431890", "title": "", "text": "The Court stated: Whatever may have been the accuracy of that theory at one time, it is clear that at the present time increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law. [Footnote omitted]. For example, in the case of a prospective witness currently in federal custody, 28 U.S.C. § 2241(c)(5) gives federal courts the power to issue writs of habeas corpus ad testificandum at the request of state prosecutorial authorities. See Gilmore v. United States, 129 F.2d 199, 202 (C.A. 10th Cir. 1942); United States v. McGaha, 205 F.Supp. 949 (D.C.E.D.Tenn.1962). 390 U.S. at 723-24, 88 S.Ct. at 1321. The Court went on to state that it was now the policy of the Bureau of Prisons to allow federal prisoners to testify in state criminal trials pursuant to writs of habeas corpus ad testificandum issued by state courts. In this connection the federal district court in Curran v. United States, 332 F.Supp. 259 (D.Del.1971), denied a state defendant’s request for a writ of habeas corpus ad testificandum to produce a federal prisoner outside of Delaware, finding that the application should have been addressed to the state court since the state court had knowledge of the need for the presence of the proposed witness. Curran cited Barber and then stated: From the extracts of the quoted decision, two underlying principles may be deduced. No sovereign power may interfere with, or lay claim to, the custody of a prisoner legally incarcerated in the jails of another sovereign power, except that upon a proper showing, and as a matter of comity, one sovereign power will permit another sovereign power to have temporary custody of a prisoner then in the jails of the former either to stand trial, or testify in a trial to be conducted in the Courts of the latter. 332 F.Supp. at 261. Curran thus notes that because of comity and cooperation between federal and state governments, a prisoner will be delivered by the federal authorities at the request of a state court." }, { "docid": "20813735", "title": "", "text": "that a writ of habeas corpus shall not extend to a prisoner “unless (5) * * * it is necessary to bring him into Court to testify * * *.” Speaking generally, in Lunsford v. Hudspeth, 126 F.2d 653 (10 Cir. 1942), Judge Murrah made this statement: “As an easy and flexible means of administering justice and of affording each sovereignty the right and opportunity to exhaust its remedy for wrongs committed against it, there has evolved the now well established rule of comity which is reciprocal, whereby one sovereignty having exclusive jurisdiction of a person may temporarily waive its right to the exclusive jurisdiction of such person for purposes of trial in the courts of another sovereignty. Thus the offender is accorded a speedy trial and the administration of justice is expedited by the availability of evidence, which might through lapse of time be lost, but such a waiver is a matter addressed solely to the discretion of the sovereignty, or its representatives having power to grant it. Ponzi v. Fessenden [258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607], supra, and Ex parte Aubert, D. C., 51 F.2d 136. The privileges granted by this flexible rule of comity should and must be respected by the sovereignty to which it is made available, and this respectful duty is reciprocal, whether federal or state, because neither sovereignty has the power to override it. Under the free exercise of this rule, no right or immunity granted by the constitution, laws, or treaties of the United States, is invaded or impaired.” And, more particularly, in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (724), the Supreme Court stated: “For example, in the case of a prospective witness currently in federal custody, 28 U.S.C. § 2241(c) (5) gives federal courts the power to issue writs of habeas corpus ad testificandum at the request of state prosecutorial authorities. See Gilmore v. United States, 129 F.2d 199, 202 (C.A. 10th Cir. 1942); United States v. McGaha, 205 F.Supp. 949 (D.C.E.D.Tenn.1962). In addition, it is the policy of the United States Bureau" }, { "docid": "3431889", "title": "", "text": "habeas corpus in the district court of the demanding state after proper state exhaustion had been completed where that challenged conviction underlies a detain-er filed with his present custodian. Word stated in dictum that the writ of habeas corpus ad testificandum is “probably available” extraterritorially and relied on the Supreme Court’s citation of McGaha in the case of Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). Barber v. Page involved a situation where the petitioner’s co-defendant waived self-incrimination and incriminated the petitioner in testimony at a preliminary hearing. When the petitioner was later tried, the co-defendant was in federal custody outside of the state where the prosecution was taking place, and the prosecution introduced the transcript from the preliminary hearing, making no effort to seek the co-defendant’s presence at trial. The Supreme Court disapproved the historical rule that the absence of a witness from the trial jurisdiction was enough to avoid any lack of confrontation issue since the court was without power to compel his attendance in such a case. The Court stated: Whatever may have been the accuracy of that theory at one time, it is clear that at the present time increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law. [Footnote omitted]. For example, in the case of a prospective witness currently in federal custody, 28 U.S.C. § 2241(c)(5) gives federal courts the power to issue writs of habeas corpus ad testificandum at the request of state prosecutorial authorities. See Gilmore v. United States, 129 F.2d 199, 202 (C.A. 10th Cir. 1942); United States v. McGaha, 205 F.Supp. 949 (D.C.E.D.Tenn.1962). 390 U.S. at 723-24, 88 S.Ct. at 1321. The Court went on to state that it was now the policy of the Bureau of Prisons to allow federal prisoners to testify in state criminal trials pursuant to writs of habeas corpus ad testificandum issued by state courts. In this connection the federal district court in Curran v. United States, 332 F.Supp. 259 (D.Del.1971), denied a state" }, { "docid": "6129195", "title": "", "text": "en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. . Although Rule 17 does not by its terms authorize a court to compel the attendance of an inmate-witness, when read together, the habeas corpus statute, 28 U.S.C. § 2241(c)(5) and the All Writs Act, 28 U.S.C. § 1651(a), provide the federal courts with this power. See, e.g., United States v. /dayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952). Unlike a subpoena, which orders the individual whose testimony is sought to attend the trial, the writ of habeas corpus ad testificandum runs to the custodian of the potential witness. Presumably, Rule 17’s procedural considerations would apply to issuance of a writ of habeas corpus ad testificandum. See United States v. Owen, 580 F.2d 365 (9th Cir. 1978); United States v. Rigdon, 459 F.2d 379 (6th Cir.1972), cert. denied, 409 U.S. 1116, 93 S.Ct. 917, 34 L.Ed.2d 700 (1973). . Appellant relies on Story v. Robinson, 689 F.2d 1176 (3d Cir.1982), arguing that there is no authority for ordering that a prison custodian be compensated for compliance with a writ of habeas corpus ad testificandum. Whatever the relevance of Story to this case, at most it might support a claim for a refund if Garmany in fact overpaid for production of witnesses. . Prior to oral argument, appellee moved to supplement the record with a portion of the United States Marshal’s Service Manual, which provides that private litigants who wish to have federal prisoners testify on their behalf must bear the cost of bringing the prisoner to court. A panel of this court ordered that the motion be carried with the case. Because of the disposition of this issue, there is no need to supplement the record, and the motion is denied. . In opposition to Garmany's request for a mistrial, the government argued that Dennis was scheduled to be incarcerated at Talladega only for a short period of time and that the transfer was routine. There was no" }, { "docid": "22247832", "title": "", "text": "trial court did not have jurisdiction to secure Stone’s presence at the trial because he was incarcerated at the Menard Correctional Center which is not in the Northern District of Illinois. They argue that the decision of this court in Edgerly v. Kennedy, supra, operates to preclude the issuance of a writ of habeas corpus ad testificandum extraterritorially. In Edgerly, supra, the plaintiff brought a civil action in the Northern District of Illinois based on alleged police brutality. Subsequent to the commencement of the action the plaintiff was convicted of serious criminal offenses and was confined in the Federal Penitentiary at Alcatraz Island, California. Plaintiff’s counsel sought writs of habeas corpus ad testificandum for the purpose of taking the plaintiff’s deposition in Chicago and for the production of the plain tiff at the trial of his claim in Chicago. This court held that the district court was without jurisdiction to direct issuance of the writs to an official who was not within the territorial jurisdiction of the court. Subsequent to the decision in Edgerly the Supreme Court held that a writ of habeas corpus ad prosequendum is not subject to territorial limitations. Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961). Garbo, however, left open the question of the extraterritorial reach of a writ of habeas corpus ad testificandum. Citing Carbo and Title 28 U.S.C. § 2241(c)(5), a district court held that in a proper case it had jurisdiction to issue a writ of habeas corpus ad testificandum ex-traterritorially to the warden of a federal prison in another jurisdiction. United States v. McGaha, 205 F.Supp. 949 (E.D.Tenn.1962). McGaha was cited with approval by the Supreme Court in Barber v. Page, 390 U.S. 719, 724, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), and Chief Judge Haynsworth of the Fourth Circuit has observed that Barber, through its citation of McGaha, “suggests that the remaining doubt about the [extraterritorial] reach of habeas corpus ad testificandum is insubstantial.” Word v. North Carolina, 406 F.2d 352 n.5 (4th Cir. 1969) (en banc). The writ of habeas corpus ad testificandum, Title" }, { "docid": "23150453", "title": "", "text": "Appellant claims that venue should have been in Maine in order that appellant could attempt to find Saul Arnold by himself. Obviously, the venue argument is tied in with appellant’s argument that the government’s failure to produce Arnold deprived appellant of his right to confrontation. Venue could have been set in either Maine or California. 18 U.S.C. § 3237. Fed.R.Crim.P. 21(b). Maine was no more convenient than California — either one required the transportation of several witnesses. With regard to the production of Saul Arnold, no one knew he would be unavailable until the Maine witnesses had already arrived in California. The Sixth Amendment does not require that the government be successful in trying to subpoena witnesses — all that is required is that the process issue and the Marshal exercise due diligence in a good faith attempt to secure service of the process. See Orfield, Federal Criminal Rules, § 17.26; cf. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (April 23, 1968). The court did not abuse its discretion in denying the motion to change venue. Lindberg v. United States, 363 F.2d 438 (9th Cir. 1966), and appellant received the process as required by the Sixth Amendment. 5. THE ALLEGED ILLEGAL SEARCH AND SEIZURE Section 482 of Title 19, United States Code, allows Customs officials to conduct a search of persons and vehicles on “border searches” when they have reasonable cause to suspect contraband is being carried into the United States. In the instant ease, the appellant’s auto was not searched until Inspector Card-well discovered various identification cards bearing various names, and ZigZag cigarette papers on the person of appellant. He suspected the possibility of marijuana. “Mere suspicion” alone is sufficient in such a case for a border search. Cervantes v. United States, 263 F.2d 800, 803, n. 5 (9th Cir. 1959); Murgia v. United States, 285 F.2d 14 (9th Cir. 1960); Corngold v. United States, 367 F.2d 1 at 14, 15 (9th Cir. 1966); Deck et al. v. United States, 395 F.2d 89 (9th Cir.) May 7, 1968. Thus, the search of appellant’s auto" }, { "docid": "3431888", "title": "", "text": "of Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948). United States v. McGaha, 205 F.Supp. 949 (E.D.Tenn.1962), followed Duncan and dealt with a defendant in a criminal case who requested a writ of habeas corpus ad testificandum to bring a prisoner incarcerated in a federal penitentiary in Virginia to the federal district court in Tennessee to testify in his behalf. The court in Mc-Gaha cited Carbo and 28 U.S.C. § 2241(c)(5) and stated: “The court has jurisdiction to issue the writ extraterritorially to the warden of the federal prison in another jurisdiction in a proper case.” Id. at 951. McGaha went on to say that if the defendant were entitled to the witness, then because he was indigent he might be entitled to the attendance of the witness at government expense pursuant to Fed.R.Crim.P. 17(b). The Fourth Circuit in Word v. North Carolina, 406 F.2d 352 (4th Cir. 1969), held that a prisoner incarcerated in one state could attack a state conviction in another state by filing his writ of habeas corpus in the district court of the demanding state after proper state exhaustion had been completed where that challenged conviction underlies a detain-er filed with his present custodian. Word stated in dictum that the writ of habeas corpus ad testificandum is “probably available” extraterritorially and relied on the Supreme Court’s citation of McGaha in the case of Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). Barber v. Page involved a situation where the petitioner’s co-defendant waived self-incrimination and incriminated the petitioner in testimony at a preliminary hearing. When the petitioner was later tried, the co-defendant was in federal custody outside of the state where the prosecution was taking place, and the prosecution introduced the transcript from the preliminary hearing, making no effort to seek the co-defendant’s presence at trial. The Supreme Court disapproved the historical rule that the absence of a witness from the trial jurisdiction was enough to avoid any lack of confrontation issue since the court was without power to compel his attendance in such a case." }, { "docid": "6129176", "title": "", "text": "and the jury returned a verdict of guilty on the remaining four counts. This appeal ensued. II. THE COST OF OBTAINING THE PRESENCE OF INMATE-WITNESSES To assist the presentation of his defense, Garmany filed petitions for writs of habeas corpus ad testificandum for several inmates scattered throughout the federal prison system. As a condition for production of these inmate-witnesses at trial, the district court required that Garmany, who made no claim of indigency, tender the cost of transporting these inmates from their respective prisons to the place of trial, Birmingham, Alabama; Garmany requested the presence of five witnesses who were incarcerated at the federal correctional institute in Talladega, which the United States marshals stated would cost approximately $1,000. Another inmate imprisoned in Lexington, Kentucky, could be produced for $2,000. Two prisoners from Leavenworth, Kansas would cost Garmany $4,000, and an inmate from El Reno, Oklahoma, could be present if Garmany tendered $3,000. Appellant argues that the costs imposed to obtain the presence of the inmates violated his sixth amendment right to compulsory process. In effect, Garmany states that due to his limited resources, he was forced to be selective in choosing among several essential defense witnesses. This in turn hindered the defense Garmany was able to present at his trial and, according to the appellant, requires reversal of his convictions. To be sure, a criminal defendant’s sixth amendment right to compulsory process is a fundamental component of due process itself. Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 1922-1923, 18 L.Ed.2d 1019 (1967); United States v. Garner, 581 F.2d 481, 488 (5th Cir.1978). To effectively implement this constitutional guarantee, the accused has the right to subpoena witnesses on his or her own behalf to testify at a trial. Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev., 567, 587 (1978). Federal Rule of Criminal Procedure 17 governs the issuance of subpoenas in criminal cases, and Rule 17(d) prescribes that service of any subpoena, except those issued on behalf of the United States, must be accompanied by payment of witness fees and travel" }, { "docid": "3431887", "title": "", "text": "respect and courtesy to the laws of the respective jurisdictions. (Footnote omitted). 364 U.S. at 620-21, 81 S.Ct. at 344. While Carbo dealt with statutory considerations dealing with writs of habeas corpus generally and based the district court’s authority to issue the habeas corpus ad prosequendum ■ on 28 U.S.C. § 2241(c)(5) (which includes writs of habeas corpus ad testificandum), the Court expressly withheld from deciding whether the writ of habeas corpus ad testificandum would be subject to the jurisdictional limitation. 364 U.S. at 618 n. 13, 81 S.Ct. 338. Following the decision in Carbo, Duncan v. Maine, 195 F.Supp. 199 (D.Me.1961), implied in dicta that Carbo would authorize a district court to issue a writ of habeas corpus ad testificandum extra-territorially. Duncan did not have to decide this question because there was no action pending in that court at that time because the petitioner was incarcerated outside of the district and the court could not gain jurisdiction over his attempted writ of habeas corpus ad subjiciendum under the principles of the then applicable decision of Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948). United States v. McGaha, 205 F.Supp. 949 (E.D.Tenn.1962), followed Duncan and dealt with a defendant in a criminal case who requested a writ of habeas corpus ad testificandum to bring a prisoner incarcerated in a federal penitentiary in Virginia to the federal district court in Tennessee to testify in his behalf. The court in Mc-Gaha cited Carbo and 28 U.S.C. § 2241(c)(5) and stated: “The court has jurisdiction to issue the writ extraterritorially to the warden of the federal prison in another jurisdiction in a proper case.” Id. at 951. McGaha went on to say that if the defendant were entitled to the witness, then because he was indigent he might be entitled to the attendance of the witness at government expense pursuant to Fed.R.Crim.P. 17(b). The Fourth Circuit in Word v. North Carolina, 406 F.2d 352 (4th Cir. 1969), held that a prisoner incarcerated in one state could attack a state conviction in another state by filing his writ of" }, { "docid": "11510237", "title": "", "text": "issue such a writ is inherent in the Court. Ex parte B oilman, 4 Cranch 75, 2 L.Ed. 554. The Court has jurisdiction to issue the writ extraterritorially to the warden of the federal prison in another jurisdiction in a proper case. 28 U.S.C. § 2241(c) (5); Carbo v. United States (1961), 364 U.S. 611, 619, 81 S.Ct. 338, 5 L.Ed.2d 329. If the defendant is found to be •entitled to the writ of habeas corpus ad testificandum to bring into court the prisoner in order that he may testify for the defendant, in the light of his oath of indigency, he may also be entitled, under certain circumstances, to the attendance of such witness at the expense of the government. Rule 17(b), Federal Rules of Criminal Procedure. It is well settled that this rule does not .accord the indigent defendant an absolute right to subpoena witnesses at the .expense of the government, but there is, and must be, a wide discretion vested in the district judges to prevent abuses of such process as often are attempted by some defendants. Reistroffer v. United States, C.A.8th, (1958), 258 F.2d 379, 396 [17, 18], certiorari denied 358 U.S. 927, 79 S.Ct. 313, 3 L.Ed.2d 301. The request should be carefully scrutinized to assure the accused’s rights under the Sixth Amendment, but the Court has the corresponding duty to explore the premise of the request and to prevent useless or abusive issuance of the process. Murdock v. United States, C.A.10th (1960), 283 F.2d 585, 587 [4, 5]. The exercise of the trial court’s discretion is a matter which is not subject to review by appellate courts in the absence of a clear abuse of discretion. Goldsby v. United States (1895), 160 U.S. 70, 16 S.Ct. 216, 40 L.Ed. 343; Crumpton v. United States (1891), 138 U.S. 361, 11 S.Ct. 355, 34 L.Ed. 958. The Court, having considered the defendant’s application and motion in the light of the cited authorities, is of the opinion and finds that the defendant is entitled to have compulsory process for obtaining this witness in his favor. Constitution of" }, { "docid": "2200432", "title": "", "text": "against the same defendant which was subject to cross-examination by that defendant.”). In the present case, the state trial court admitted Tony’s videotaped deposition at trial after finding that the requirements of Ohio Crim. R. 15(F) and Ohio Rev.Code § 2945.50 had been satisfied. But the requirements of Ohio Crim. R. 15(F) and § 2945.50 are not identical to the constitutional requirements established in Roberts — most importantly, neither requires the deponent to be “unavailable” in the constitutional sense established in Roberts and Barber. At most, Rule 15(F) permits the admission of deposition testimony when the deponent is out of the state. But this does not relieve the State of its duty to make a good-faith effort to obtain the witness’s presence. The Supreme Court has held that “a witness is not ‘unavailable’ for purposes of ... the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). In fact, the Barber Court considered a fact pattern very similar to the present case, at least regarding the “unavailability” of the declarant. In Barber, the habeas petitioner was tried for armed robbery in Oklahoma; the principal evidence against the petitioner consisted of the transcribed preliminary hearing testimony of a witness, Woods, then incarcerated in a federal prison in Texas. See id. at 720, 88 S.Ct. 1318. The prosecution offered this preliminary hearing testimony at trial on the theory that Woods was unavailable to testify because of his incarceration, and the petitioner objected. The evidence was' admitted over this objection. In seeking a federal writ of habeas corpus, the petitioner claimed that his confrontation rights had been violated by the admission of this pri- or testimony hearsay because the prosecution had not demonstrated the unavailability of the declarant. The district court and court of appeals denied- his petition. See id at 720-21, 88 S.Ct. 1318. The Supreme Court reversed, however, and established the general rule for determining whether a hearsay declar-ant is unavailable in the constitutional sense. In Barber, the prosecution" }, { "docid": "23013122", "title": "", "text": "it did not require the prosecution to produce a seemingly available witness.” Ohio v. Roberts, supra, 448 U.S. at 65 n.7, 100 S.Ct. at 2538 n.7; see also note 9 infra. . Fed.R.Evid. 804(a)(5) provides: (a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant— (5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), his attendance or testimony) by process or other reasonable means. A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying. . Although the extent and nature of the government’s efforts to locate Ms. Robinson as a witness do not appear in the record, the government attorney informed the district court that both parties had looked unsuccessfully for Ms. Robinson. We conclude that Ms. Robinson was an unavailable witness “in the constitutional sense.” Ohio v. Roberts, supra, 448 U.S. at 74, 100 S.Ct. at 2543, citing Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 1321-22, 20 L.Ed.2d 255 (1968) (“[A] witness is not ‘unavailable’ for purposes of .. . the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his [or her] presence at trial.”). But cf. Ohio v. Roberts, supra, 448 U.S. at 79, 100 S.Ct. at 2546 (Brennan, J., dissenting) (“[T]he government must show that it has engaged in a diligent effort to locate and procure the witness’ return.”). . But see United States v. White, supra, 553 F.2d at 314. We distinguish United States v. Garris, supra, 616 F.2d at 632-33. In Garris the declarant was “only Actively an ‘unavaila ble’ witness, for in fact she appeared before the jury and was cross-examined,” thus foreclosing any confrontation clause problem. Id. at 633 & n.16. Moreover, the declarant in Garris testified outside the presence" }, { "docid": "22247833", "title": "", "text": "Supreme Court held that a writ of habeas corpus ad prosequendum is not subject to territorial limitations. Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961). Garbo, however, left open the question of the extraterritorial reach of a writ of habeas corpus ad testificandum. Citing Carbo and Title 28 U.S.C. § 2241(c)(5), a district court held that in a proper case it had jurisdiction to issue a writ of habeas corpus ad testificandum ex-traterritorially to the warden of a federal prison in another jurisdiction. United States v. McGaha, 205 F.Supp. 949 (E.D.Tenn.1962). McGaha was cited with approval by the Supreme Court in Barber v. Page, 390 U.S. 719, 724, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), and Chief Judge Haynsworth of the Fourth Circuit has observed that Barber, through its citation of McGaha, “suggests that the remaining doubt about the [extraterritorial] reach of habeas corpus ad testificandum is insubstantial.” Word v. North Carolina, 406 F.2d 352 n.5 (4th Cir. 1969) (en banc). The writ of habeas corpus ad testificandum, Title 28 U.S.C. § 2241(c)(5), is, on its face, comparable to and is as broad as the writ of habeas corpus ad prosequendum, Title 28 U.S.C. § 2241(c)(4). Cf. Ex parte Bollman, 8 U.S. (4 Cranch) 74, 2 L.Ed. 554 (1807). We therefore hold that a district court has the power, although to be exercised with discretion, to compel production of an incarcerated party or witness from anywhere in the country through the use of a writ of habeas corpus ad testificandum. To the extent that Edgerly v. Kennelly, supra, is inconsistent with this decision, it is overruled. Due to the setting in which the plaintiff’s civil rights claim arose, and the way in which it was submitted to the jury as fact finders, we conclude that the plaintiff is entitled to a new trial in which his side of the controversy can be fairly presented. In so holding we are not saying that Stone must be allowed to personally appear at the trial. However, based on the facts of this case, we consider it most" }, { "docid": "8569066", "title": "", "text": "circumstances.” Fed.R.Crim.P. 15(a). The record shows that the four witnesses had engaged in a hunger strike for over ten days to secure their return to Mexico, that efforts to convince them to eat had failed, and that they had been found by a physician to be suffering ill effects. Moreover, local authorities had refused to continue to house the witnesses. The magistrate did not abuse his discretion in finding that exceptional circumstances existed. See United States v. Tunnell, 667 F.2d 1182, 1186-87 (5th Cir.1982). Terrazas-Montano also argues that his counsel was not given enough time to prepare for the deposition. The magistrate set the depositions two days from the hearing on the motion. The witnesses had been in custody for more than a month between the time of indictment and the taking of the depositions. Moreover, Terrazas-Montano knew all the witnesses, as they had been living in his basement. The appellant also argues that showing the depositions at trial violated the confrontation clause and Federal Rule of Criminal Procedure 15(c). We reject this contention. First, the witnesses had been returned to Mexico and had told the INS representative that they would not return to testify. They were undoubtedly beyond the reach of process of the United States District Court for the District of Nebraska. We think it evident that the witnesses were unavailable, under circumstances which reflect no bad faith on the part of the government. To require the government to show that it was unable to procure the attendance of the witnesses under Rule 804(a)(5) of the Federal Rules of Evidence would compel a useless act. See Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597 (1980); Mancusi v. Stubbs, 408 U.S. 204, 211-13, 92 S.Ct. 2308, 2312-2313, 33 L.Ed.2d 293 (1972); Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 1321-1322, 20 L.Ed.2d 255 (1968); United States v. Seijo, 595 F.2d 116, 120 (2d Cir.1979). Second, the trial-type setting of the depositions produced sufficient “indicia of reliability” to satisfy the sixth amendment. See Ohio v. Roberts, 448 U.S. at 62-66, 100 S.Ct." }, { "docid": "2264531", "title": "", "text": "Id. 109 S.Ct. at 2902. It is clear that Link’s criminal acts were part of a long term relationship with an organization that existed for a criminal purpose. We conclude that there was sufficient evidence to support a finding of a “pattern of racketeering activity.” (2) Did the trial court err in failing to permit appellant to call Frank Hano-phy as a witness? The Sixth Amendment to the Constitution of the United States provides in pertinent part as follows: “In all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor....” As we stated in United States v. Garmany, 762 F.2d 929 (11th Cir.1985): Federal Rule of Criminal Procedure 17 governs the issuance of subpoenas in criminal cases.... For a defendant who is financially unable to pay these costs Rule 17(b) requires the court to subpoena witnesses on that defendant’s behalf “upon a satisfactory showing ... that the presence of the witness is necessary to an adequate defense.” Id. at 933, 934. “The grant or denial of a Rule 17(b) motion is committed to the discretion of the district court and is subject to reversal on appeal only upon a showing of abuse of that discretion.” U.S. v. Rinchack, 820 F.2d 1557,1566 (11th Cir.1987) (citing United States v. Hegwood, 562 F.2d 946 (5th Cir.1977)), and other cases. Appellant relies upon the following language from Hegwood: Welsh [v. United States, 404 F.2d 414, 417 (5th Cir.1968)], further establishes that once the defendant asserts facts which, if true, would be relevant to any issue, the motion for a subpoena must be granted unless the assertions are facially incredible or unless the government can show that they are untrue or that the request is frivolous.... United States v. Hegwood, 562 F.2d 946, 953 (5th Cir.1977). This Court has recently discussed the requirements for a defendant in making a Rule 17(b) request. We stated as follows: As a threshold matter, a defendant making a Rule 17(b) request bears the burden of articulating specific facts that show the relevancy and necessity of the requested witness’s testimony." }, { "docid": "11510236", "title": "", "text": "in the possession, custody, operation or control of the illegal distillery, unlawful mash or illicit whiskey as is charged in the indictment. Apparently, in other words, this witness will shoulder the entire blame for the infraction and undertake by his testimony to absolve the defendant. The defendant has included in his affidavit the assertion that he is, because of his poverty, unable to pay the fees and costs incident to invoking his constitutional right to compulsory process for obtaining the attendance of this witness in his favor. An application for a writ of habeas corpus ad testificandum is addressed to the discretion of the Court. Cuckovich v. United States, C.A.6th (1948), 170 F.2d 89, 90, certiorari denied 336 U.S. 905, 69 S.Ct. 484, 93 L.Ed. 1070. The purpose of this writ is to bring into court one who is confined in •order that he may testify in a cause on \"trial. Price v. Johnston, C.A.9th (1947), 159 F.2d 234, 235 f. 1, rev. 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356. The power to issue such a writ is inherent in the Court. Ex parte B oilman, 4 Cranch 75, 2 L.Ed. 554. The Court has jurisdiction to issue the writ extraterritorially to the warden of the federal prison in another jurisdiction in a proper case. 28 U.S.C. § 2241(c) (5); Carbo v. United States (1961), 364 U.S. 611, 619, 81 S.Ct. 338, 5 L.Ed.2d 329. If the defendant is found to be •entitled to the writ of habeas corpus ad testificandum to bring into court the prisoner in order that he may testify for the defendant, in the light of his oath of indigency, he may also be entitled, under certain circumstances, to the attendance of such witness at the expense of the government. Rule 17(b), Federal Rules of Criminal Procedure. It is well settled that this rule does not .accord the indigent defendant an absolute right to subpoena witnesses at the .expense of the government, but there is, and must be, a wide discretion vested in the district judges to prevent abuses of such process as often" } ]

[ { "docid": "14878422", "title": "", "text": "Memorandum Opinion and Order DiCarlo, Judge: Plaintiffs, domestic producers of inner tubes, have moved for relief from the Court’s order of October 24, 1985, affirming, except as to verification of the weights of the merchandise exported by intervenor Dong-Ah Tire Ind. Co., Ltd. (Dong-Ah), a final determination by the Department of Commerce, International Trade Administration (Commerce) that inner tubes from the Republic of Korea (Korea) are being sold in the United States at not less than fair value. Carlisle Tire & Rubber Co. v. United States, 9 CIT 520, 622 F. Supp. 1071 (1985). Commerce subsequently filed a report of the weighing of Dong-Ah’s tubes during its on-site verification, in accordance with the Court’s order. The questions to be decided are: (1) whether Commerce has established a rule that dumping margins of less than .5 per cent ad valorem are to be disregarded as de minimis; and (2)(a) whether Commerce must have determined the weights of in-tervenors’ merchandise exported to the United States when it adjusted the United States price of the merchandise to account for import duties imposed by Korea on raw materials which were rebated (referred to by the parties as \"drawback adjustments”); and, if so, (b) whether those weights are different than the weights of the same merchandise verified by Commerce to adjust the foreign market value of the merchandise to allow for differences in physical characteristics of the merchandise sold in the United States and Korea (\"merchandise adjustments”); and, if so, (c) whether Commerce may use both sets of weights in accordance with law. Background Plaintiffs sought reconsideration of the Court’s affirmance of Commerce’s determination on two points. First plaintiffs challenged Commerce’s comparison of the imported inner tubes according to product category as \"such or similar merchandise” under 19 U.S.C. §§ 1677(16) and 1677b(a)(l)(A) (1982 & Supp. II 1984). On December 27,1985, the Court, in an unpublished memorandum opinion and order, denied that part of plaintiffs’ motion, explaining that plaintiffs’ arguments were addressed at 9 CIT at 525, 622 F. Supp. at 1076 & n.7. Second, plaintiffs said that (1) commerce used one set of tube" } ]

[ { "docid": "18894391", "title": "", "text": "value exceeds the United States price for the merchandise. Foreign market value and United States price represent prices in different markets affected by a variety of differences in the chain of commerce by which the merchandise reached the export or domestic market. Both values are subject to adjustment in an attempt to reconstruct the price at a specific, \"common” point in the chain of commerce, so that value can be fairly compared on an equivalent basis. Smith-Corona Group v. United States, 713 F.2d 1568, 1571-72 (Fed. Cir. 1983) (emphasis in original) (footnote omitted), cert. denied, 104 S.Ct. 1274 (1984). The foreign market value of intervenors’ inner tubes was determined on the basis of home market sales, in accordance with 19 U.S.C. § 1677b(a)(1). Specifically, plaintiffs claim that: (1) Commerce incorrectly paired the sizes of inner tubes Heung-Ah sold in the home market and in the United States as \"such or similar merchandise”; (2) Commerce should have allocated all or part of Dong-Ah’s labor cost at the rubber mixing stage of production on the basis of tube weights, rather than time, in determining Dong-Ah’s cost of production for disregarding below cost of production home market sales; (3) Commerce should have used a six-month weighted average rather than quarterly data in determining Dong-Ah’s cost of manufacture for making merchandise adjustments to Dong-Ah’s foreign market value; (4) Commerce should have made a circumstances of sale adjustment to Heung-Ah’s foreign market value to include product liability insurance expenses for exported tubes; (5) Commerce should have made a level of trade adjustment to Heung-Ah’s foreign market value to include unloading charges in sales to original equipment manufacturers; (6) Commerce insufficiently investigated respondent’s home market sales prices; and (7) In adjusting foreign market value to account for differences in physical characteristics of the exported and home market inner tubes, Commerce improperly determined and insufficiently verified the weights of intervenors’ exported inner tubes. The Court finds, with respect to each contention except verification of the weights of Dong-Ah’s exported inner tubes, that Commerce’s determination is supported by substantial evidence or otherwise in accordance with law. II. The" }, { "docid": "18894400", "title": "", "text": "Heung-Ah allocates its labor costs at the mixing stage by time, as does plaintiff Carlisle Tire & Rubber Company. Again, the Court must defer to Commerce’s expertise and judgment. The Court holds that Commerce’s acceptance of Dong-Ah’s time-based labor cost allocation was reasonable and in accordance with law. C. Calculation of Dong-Ah’s Cost of Manufacture Adjustments must be made in foreign market value to the extent that physical differences in the home market and export merchandise being compared result in differences in cost of production of the merchandise. 19 U.S.C. § 1677b(a)(4) (1982), 19 C.F.R. § 353.16 (1984). Intervenors’ inner tubes manufactured for export to the United States have more rubber content than tubes sold in the home market. In order to adjust foreign market value to account for this physical difference in home market and exported tubes, Commerce calculated the cost of manufacturing, or making, the tubes. To determine the cost of manufacture, Commerce used costs in the quarter in which the sale occurred, rather than six-month weighted average costs, which were used to calculate cost of production in order to disregard below cost of production home market sales in determining foreign market value. Plaintiffs argue that since Commerce determined Dong-Ah’s cost of production by six-month weighted average, it was required to use six-month weighted average to determine cost of manufacture, which is an element of cost of production. Plaintiffs say that Commerce could not reasonably use a six-month weighted average to calculate the entire cost of production for one purpose and another method to calculate part of that cost for another purpose. The Court disagrees. Defendant says Commerce used quarterly data in calculating the cost of manufacture because it believed that method would reflect those particular costs more accurately than would a six-month weighted average. Plaintiffs does not dispute this. Commerce’s determination that quarterly data are more accurate for making merchandise adjustments is entitled to deference, and the Court finds it reasonable and in accordance with law. D. Circumstances of Sale Adjustments 1. Product Liability Insurance 19 U.S.C. § 1677b(a)(4) provides that \"if it is established to the" }, { "docid": "18894389", "title": "", "text": "tubes were materially injuring, or threatening to materially injure, a United States industry. Tubes For Tires, Other Than For Bicycle Tires, From the Republic of Korea, Investigation No. 731-TA-137 (Preliminary), USITC Public. No. 1416, 48 Fed. Reg. 39,519 (1983). Commerce sent sales price and production cost questionnaires to two Korean producers, Heung-Ah Tire Ind. Co., Ltd. (Heung-Ah) and Dong Ah Tire Ind. Co., Ltd. (Dong-Ah), who together produce about 90 percent of the inner tubes exported from Korea to the United States. On February 10, 1984, Commerce published a preliminary determination that the Korean producers were not selling at less than fair value. 49 Fed. Reg. 5155. Commerce published its final negative determination on June 29, 1984, finding de minimis weighted-average dumping margins of 0.03% for Heung-Ah and 0.01% for Dong-Ah. 49 Fed. Reg. 26,780, 26,784. On July 25,1984, six of the petitioners (plaintiffs) sought review of Commerce’s determination, pursuant to 19 U.S.C. § 1516a(a)(2) (1982). On October 31, 1984, the administrative record was filed in the Court. Dong-Ah and Heung-Ah were granted leave to intervene on November 14, 1984 and December 27, 1984, respectively. On January 9, 1985, plaintiffs moved to compel the filing of a newly certified and supplemented administrative record. Following a hearing held on February 25, 1985, plaintiffs’ motion was granted in part and denied in part. A newly certified record was filed in the Court on May 17, 1985. Plaintiffs now move for judgment on the agency record pursuant to Rule 56.1 of the Rules of this Court. Plaintiffs claim Commerce made several errors in determining and adjusting the foreign market value of intervenors’ inner tubes. Foreign market value is defined at 19 U.S.C. § 1677b(a)(l) (1982). Our appellate court has summarized the central role of foreign market value in the antidumping laws: If foreign merchandise is sold or is likely to be sold in the United States at less than its fair value to the material injury of a United States industry, then an additional antidumping duty shall be imposed. The amount of the duty shall equal the amount by which the foreign market" }, { "docid": "18894423", "title": "", "text": "the result. There is substantial evidence on the record as a whole that Commerce verified intervenors’ home market prices. Plaintiffs claim that the record shows that Association reports wholesale prices as well as retail prices. Again, even if the investigator erred in reporting this conclusion, the on-site verification provides substantial evidence for Commerce’s determination of intervenor’s home market prices. This submission, which consists of tables of prices said to have been obtained by Korean researchers, was not accompanied by invoices or other documentation, nor does it record dates of purchase, quantities purchased, or other information relating to individual transactions. The Court notes that 19 U.S.C. § 1677e(b) permits Commerce to use the best information available if a party does not produce information in a \"timely manner.” The weight of the exported tubes is important because foreign market value adjustment for differences is the home market and export tubes other than valve differences in largely determined by the weight of the tubes which are being compared. The cost of manufacture for the exported tube will exceed the cost of manufacture of the home market comparison tube, and the foreign market value of the home market tube will be adjusted upward, to the extent that the exported tube weighs more — has more rubber material — than the home market comparison tube. See 19 C.P.R. § 353.16 (adjustment amount primarily determined by difference in cost of producing physical differences in merchandise); Part III.C. supra. This tax is based on the weight of the merchandise. See 26 U.S.C. § 4071(a)(3) (1982), amended by 26 U.S.C.A. § 4071(a) (West Supp. 1985). Plaintiffs say that it was against the pecuniary interest of the price list’s author (the \"declarant”) to circulate a list of substantially higher taxes payable by purchasers than were actually required by the tube weights; that such a statement against interest is admissible sis evidence of the truth of the statement; and that there is no requirement that the declarant be the party, or the agent of the party, against which the statement is submitted. Dong-Ah informed Commerce that the weights reported for" }, { "docid": "14878425", "title": "", "text": "Commerce determined that the complete elimination of the drawback adjustment would result in dumping margins of .453506 percent for intervenor Heung-Ah Tire Ind. Co., Inc. (Heung-Ah) and, .457188 percent for Dong-Ah. In its brief defendant argued that: the dumping margins are still below .5 percent and are thus de minimis. Since elimination of the adjustments for drawback would still result in de minimis margins, the issue raised by plaintiff concerning the use of a different set of data for making drawback adjustments is irrelevant. Defendant’s Motion for Order (1) Withdrawing Court Order Directing Oral Argument to be Held and (2) Entering Judgment, at 4. Commerce subsequently lowered the Heung-Ah margin to .440206 percent by eliminating the adjustment to United States price for Korean defense tax rebated for export sales and upwardly adjusting the United States price to account for duties and defense tax rebated on the inner tube valves. Although plaintiffs had not objected to Commerce’s use of the de minimis concept in Commerce’s final determination, which found weighted average dumping margins of .03 percent for Heung-Ah and .01 percent for Dong-Ah, plaintiffs now argued that the new margins were not de minimis, and that the Commerce \"rule” that margins less than .5 percent are de minimis is arbitrary and contrary to law. At oral argument defendent declined to say what dumping margin would result if Commerce calculated drawback adjustment using the merchandise adjustment weights. Defendant said the drawback adjustment would not be recalculated without an order of remand. At the conclusion of oral argument the Court requested additional briefing on the de minimis issue. The Court how holds that the action must again be remanded. The De Minimis Issue Commerce has made no finding that margins of approximately .45 are de minimis in this investigation. Nevertheless, the Court agrees with counsel for defendant that if Commerce could validly apply a .5 percent ad valorem standard for determining whether a dumping margin is de minimis, judgment for defendant would be appropriate. But, the Court does not agree that Commerce can validly apply the .5 percent de minimis standard on this" }, { "docid": "21815818", "title": "", "text": "generally infra section I.B.) Duty Drawback Adjustment. In calculating a foreign producer’s dumping margin, to ensure an “apples-to-apples” comparison between normal value and export price, Commerce must—through a “duty drawback adjustment”—account for any duty drawback that the foreign producer received pursuant to the duty drawback program in its home country. Specifically, Commerce is directed by statute to increase the export price by “the amount of any import duties imposed by the country of exportation which have been rebated, or which have not been collected, by reason of the exportation of the subject merchandise to the United States.” 19 U.S.C. § 1677a(c)(1)(B); see also Saha Thai Steel Pipe (Public) Co. v. United States, 635 F.3d 1335, 1338 (Fed. Cir. 2011) (summarizing duty drawback adjustment statute). Like any adjustment that increases the export price, a duty drawback adjustment (in effect) lowers the foreign producer’s dumping margin. The purpose of the duty drawback adjustment—i.e., the upward adjustment made to the export price pursuant to 19 U.S.C. § 1677a(c)(1)(B)—is to prevent a dumping margin from being created, or artificially inflated, because the exporting country exempts from import duties (or refunds/rebates import duties paid on) material inputs or components that are imported into the country and used to produce a product that is subsequently exported. See generally, e.g., Wheatland Tube Co. v. United States, 30 C.I.T. 42, 60, 414 F.Supp.2d 1271, 1286 (2006), rev’d on other grounds, 495 F.3d 1355 (Fed. Cir. 2007); Allied Tube & Conduit Corp. v. United States, 29 C.I.T. 502, 506, 374 F.Supp.2d 1257, 1261 (2005); Hornos Electricos de Venezuela, S.A. v. United States, 27 C.I.T. 1522, 1525, 285 F.Supp.2d 1353, 1358 (2003) (“HEVENSA”); Far East Mach. Co. v. United States, 12 C.I.T. 428, 430-31, 688 F.Supp. 610, 611 (1988); Carlisle Tire & Rubber Co. v. United States, 10 C.I.T. 301, 307, 634 F.Supp. 419, 424 (1986). Duty drawback adjustments thus account for the fact that producers do not have to factor import duty into then prices for their merchandise when it is sold in foreign markets, but “the producers remain subject to the import duty when they sell the subject" }, { "docid": "14878434", "title": "", "text": "verified in making merchandise adjustments. Intervenors argue that Korea calculated the rebate on the basis of lower tube weights. Commerce does not indicate which weights Korea used in calculating the rebate; in its final determination Commerce says only that a drawback adjustment was made. 49 Fed. Reg. at 26781. Defendant argues that the tube weights are irrelevant to the drawback adjustment under the antidumping law. Defendant says Commerce need only verify the amount of rebate received by inter-venors. The Court is concerned that the negative determination may have resulted from the use of conflicting sets of weights. Under the antidumping law dumping margins for imported merchandise are calculated by comparing determinations of foreign market value and United States price. See 19 U.S.C. § 1673 (1982 & Supp. II1984). Upward and downward adjustments are made to foreign market value and United States price pursuant to statutory provisions. To prevent dumping margins from arising because the exporting country rebates import duties and taxes for raw materials used in exported merchandise, the antidumping law provides for an offsetting adjustment in the calculation of United States price. Under section 1677a(d)(l)(B), United States price must be increased by \"the amount of any import duties imposed by the country of exportation which have been rebated.” (Emphasis added). This amount must be verified. 19 U.S.C. § 1677e(a). Congress has not directed Commerce to adjust United States price merely by the amount of the rebate received by the foreign producer; Commerce must adjust the United States price by the amount of duty imposed by the home market government on raw materials rebated because of merchandise exported to the United States. See Color Television Receivers From Korea; Final Results of Administrative Review of Antidumping Duty Order, 49 Fed. Reg. 50420, 50428 (Comment 33). The Court knows of no way, and none has been proposed, for Commerce to correctly allocate duties \"imposed” on the raw materials imported into Korea to the tubes exported from Korea to the United States that does not involve determining the weights of the tubes. The Court holds that Commerce necessarily must make a finding as" }, { "docid": "18894415", "title": "", "text": "that the letter is not substantial evidence that Commerce verified Dong-Ah’s reported tube weights and that there is not substantial evidence on the record that Dong-Ah’s tube weights were verified as required by 19 U.S.C. § 1677e. \"The failure of [defendant] to provide the court with the basis of its determination precludes the court from fulfilling its statutory obligation on review.” Industrial Fasteners Group, American Importers Ass’n v. United States, 2 CIT 181, 190, 525 F. Supp. 885, 893 (1981), appeal after remand, 3 CIT 58, 542 F. Supp. 1019 (1982), aff’d, 710 F.2d 1576 (Fed. Cir. 1983). Accordingly, the action must be remanded. If Commerce investigators weighed Dong-Ah’s export tubes during the on-site verification, Commerce is directed to supplement the record with a report of that verification and its findings and any redetermination of Dong-Ah’s weighted-average dumping margin within thirty days from the date of this opinon. If Commerce investigators did not weigh the tubes, Commerce is directed to determine and verify the weights of Dong-Ah’s export tubes and report its findings and any redetermination of Dong-Ah’s weighted-average dumping margin within sixty days from the date of this opinion. V. Conclusion Except with respect to verification of the weights of Dong-Ah’s tubes, the Court finds Commerce’s determination supported by substantial evidence and otherwise in accordance with law. Plaintiffs’ motion for judgment on the agency record is granted in part and denied in part, and the case is remanded for further action consistent with this opinion. So ordered. Pursuant to requests from petitioners, and 19 U.S.C. § § 1673b(c), 1673d(aX2) (1982), Commerce postponed its preliminary and final determinations. 48 Fed. Reg. 53,740 (1983); 49 Fed. Reg. 12,733 (1984). The Court denied plaintiffs’ motion to have certain telexes included in the record. See note 20, infra. Plaintiffs also argue in their initial brief that Commerce failed to disregard all below cost home market sales by Dong-Ah in adjusting its foreign market value, and that Commerce made numerous errors entering data in the computer programs used to compute foreign market value. Plaintiffs’ reply brief concedes that Commerce disregarded Dong-Ah’s below cost home" }, { "docid": "14878424", "title": "", "text": "weights, derived from weighing sample tubes, for purposes of making merchandise adjustments pursuant to 19 U.S.C. § 1677b(a)(4) and 19 C.F.R. § 353.16 (1984), and another, higher, set of tube weights, derived from invoices and packing documents, for making drawback adjustments pursuant to 19 U.S.C. § 1677a(d)(l)(B), (2) Commerce’s use of different export tube weights for different purposes was not supported by substantial evidence or in accordance with law, and (3) the Court should order Commerce to use the higher drawback weights in making merchandise adjustments. In its December opinion the Court held that defendant and inter-venors had not sufficiently addressed plaintiffs’ argument that Commerce used conflicting sets of weights for the same merchandise in making drawback adjustments. The Court directed defendant to address at oral argument whether a dumping margin greater than de minimis would result if Commerce lowered the drawback adjustment using the tube weights verified by Commerce for determining the merchandise adjustment. Defendant moved to set aside the Court’s order directing oral argument claiming that the tube weights issue was moot since Commerce determined that the complete elimination of the drawback adjustment would result in dumping margins of .453506 percent for intervenor Heung-Ah Tire Ind. Co., Inc. (Heung-Ah) and, .457188 percent for Dong-Ah. In its brief defendant argued that: the dumping margins are still below .5 percent and are thus de minimis. Since elimination of the adjustments for drawback would still result in de minimis margins, the issue raised by plaintiff concerning the use of a different set of data for making drawback adjustments is irrelevant. Defendant’s Motion for Order (1) Withdrawing Court Order Directing Oral Argument to be Held and (2) Entering Judgment, at 4. Commerce subsequently lowered the Heung-Ah margin to .440206 percent by eliminating the adjustment to United States price for Korean defense tax rebated for export sales and upwardly adjusting the United States price to account for duties and defense tax rebated on the inner tube valves. Although plaintiffs had not objected to Commerce’s use of the de minimis concept in Commerce’s final determination, which found weighted average dumping margins of .03 percent" }, { "docid": "8867030", "title": "", "text": "very similar arguments in Allied Tube, 374 F. Supp. 2d. at 1259. In Allied Tube, the court rejected the plaintiffs’ assertion that to qualify for a duty drawback adjustment the respondent was required to prove that it paid import duties on inputs used in the production of subject merchandise sold in the domestic market. Id. at 1261. In reaching its decision, the court analyzed Hevensa and held that Hevensa did not create a separate, third prong to the duty drawback test. Rather, the Court [sic] affirmed the first prong of Commerce’s test whereby a party seeking a duty drawback adjustment must demonstrate that either rebate and import duties are dependent on one another, or that exemption from import duties is linked to exportation of the subject merchandise. Allied Tube, 374 F. Supp. 2d at 1263. The Court also considered whether it was relevant that the respondent “did not pay any import duties on raw materials used to produce subject merchandise for the home market.” Id. The court concluded that Commerce’s decision to grant the duty drawback adjustment was reasonable because Commerce found that the drawback regime was reliable and that the respondent satisfied both prongs of the duty drawback eligibility test. This Court finds no reason to deviate from the court’s well-reasoned decision in Allied Tube. “The clear language of 19 U.S.C. § 1677a(c)(l)(B) does not require an inquiry into whether the price for products sold in the home market includes duties paid for imported inputs.” Id. at 1262. The Trade Act “allows a full upward adjustment,” Avesta, 17 CIT at 1216, to EP for the duties “which have not been collected,” 19 U.S.C. § 1677a(c)(l)(B). Further, this Court explicitly rejects Plaintiffs’ “contention that, as a prerequisite to receiving [a] duty drawback [adjustment], a company must demonstrate the payment of duties upon raw materials used to produce merchandise sold in the home market.” Allied Tube, 374 F. Supp. 2d at 1261. Insofar as Plaintiffs do not challenge Commerce’s finding that Saha Thai satisfied the two-pronged duty drawback eligibility test, this Court finds Commerce’s allowance of the duty drawback adjustment reasonable" }, { "docid": "14878433", "title": "", "text": "772.60, Tariff Schedules of the United States, are currently 3.9 percent. The United States negotiated staged reductions in duty for the merchandise by as little as .1 percent per year during the period 1980-1986. See Proclamation No. 4707, 44 Fed. Reg. 72348, 72527 (1979). Should Commerce choose to disregard the drawback adjustment, it must explain why the resulting margins of approximately .45 percent are de minimis in this investigation. Conflicting Tube Weight Determinations Intervenors paid Korea duty and defense tax when they imported synthetic rubber and other raw materials into Korea. Some of the materials were used in the manufacture of the tubes in this case. Pursuant to Korean law intervenors were entitled to a rebate of the duty and tax imposed on the raw materials used in making the tubes when the merchandise was exported from Korea. The parties disagree on the tube weights Korea used in assessing the rebate. Plaintiffs claim Korea assessed the rebate on the basis of higher invoice and packing list weights supplied by intervenors rather than lower weights Commerce verified in making merchandise adjustments. Intervenors argue that Korea calculated the rebate on the basis of lower tube weights. Commerce does not indicate which weights Korea used in calculating the rebate; in its final determination Commerce says only that a drawback adjustment was made. 49 Fed. Reg. at 26781. Defendant argues that the tube weights are irrelevant to the drawback adjustment under the antidumping law. Defendant says Commerce need only verify the amount of rebate received by inter-venors. The Court is concerned that the negative determination may have resulted from the use of conflicting sets of weights. Under the antidumping law dumping margins for imported merchandise are calculated by comparing determinations of foreign market value and United States price. See 19 U.S.C. § 1673 (1982 & Supp. II1984). Upward and downward adjustments are made to foreign market value and United States price pursuant to statutory provisions. To prevent dumping margins from arising because the exporting country rebates import duties and taxes for raw materials used in exported merchandise, the antidumping law provides for an offsetting" }, { "docid": "14878436", "title": "", "text": "to the weights of the merchandise when it adjusts United States prices pursuant to section 1677a(d)(l)(B). The failure of Commerce to state those weights, which constitutes the factual basis for a determination under section 1677a(d)(l)(B), leaves the record in this investigation incomplete. Although Commerce is given great latitude in interpreting statutes it administers, our appellate court has recently affirmed that an agency interpretation may not contravene the legislative intent. American Lamb Co. v. United States, No. 86-560, slip op. at 13 (Fed. Cir. Feb. 28, 1986). Accordingly, the Court remands the action for Commerce to state on the record the exported tube weights accepted as valid by Commerce, and how rebates to intervenors were allocated to the exported tubes for purposes of an adjustment under section 1677a(d)(l)(B). The Court has previously held that Commerce acted within its discretion in weighing sample tubes to determine tube weights for making merchandise adjustments, 9 CIT 532, 622 F. Supp. at 1081-83. But if the weights accepted by Commerce for the section 1677a(d)(l)(B) adjustment are different than the weights verified by Commerce for the merchandise adjustment, and the use of these conflicting sets of weights results in a negative rather than affirmative determination, Commerce must choose one set of weights to use for both adjustments. Conclusion The case is remanded to Commerce. Should Commerce choose to disregard the drawback adjustment, it must explain why the resulting margins of approximately .45 percent are de minimis in this investigation. If Commerce adjusts United States price under section 1677a(d)(l)(B), Commerce is directed to supplement the record setting forth the tube weights used in calculating that adjustment. If the weights used by Commerce in making that adjustment were different than the weights verified by Commerce for merchandise adjustment purposes, and the use of these conflicting sets of weights results in a negative rather than affirmative determination, Commerce must choose one set of weights to use for both adjustments, and recalculate one of the adjustments and the dumping margins. Consistent with the foregoing, Commerce is directed to supplement the record and make any necessary redetermination of inter-venors’ weighted-average dumping" }, { "docid": "14878437", "title": "", "text": "verified by Commerce for the merchandise adjustment, and the use of these conflicting sets of weights results in a negative rather than affirmative determination, Commerce must choose one set of weights to use for both adjustments. Conclusion The case is remanded to Commerce. Should Commerce choose to disregard the drawback adjustment, it must explain why the resulting margins of approximately .45 percent are de minimis in this investigation. If Commerce adjusts United States price under section 1677a(d)(l)(B), Commerce is directed to supplement the record setting forth the tube weights used in calculating that adjustment. If the weights used by Commerce in making that adjustment were different than the weights verified by Commerce for merchandise adjustment purposes, and the use of these conflicting sets of weights results in a negative rather than affirmative determination, Commerce must choose one set of weights to use for both adjustments, and recalculate one of the adjustments and the dumping margins. Consistent with the foregoing, Commerce is directed to supplement the record and make any necessary redetermination of inter-venors’ weighted-average dumping margins within thirty days from the date of this opinion. So ORDERED." }, { "docid": "14878435", "title": "", "text": "adjustment in the calculation of United States price. Under section 1677a(d)(l)(B), United States price must be increased by \"the amount of any import duties imposed by the country of exportation which have been rebated.” (Emphasis added). This amount must be verified. 19 U.S.C. § 1677e(a). Congress has not directed Commerce to adjust United States price merely by the amount of the rebate received by the foreign producer; Commerce must adjust the United States price by the amount of duty imposed by the home market government on raw materials rebated because of merchandise exported to the United States. See Color Television Receivers From Korea; Final Results of Administrative Review of Antidumping Duty Order, 49 Fed. Reg. 50420, 50428 (Comment 33). The Court knows of no way, and none has been proposed, for Commerce to correctly allocate duties \"imposed” on the raw materials imported into Korea to the tubes exported from Korea to the United States that does not involve determining the weights of the tubes. The Court holds that Commerce necessarily must make a finding as to the weights of the merchandise when it adjusts United States prices pursuant to section 1677a(d)(l)(B). The failure of Commerce to state those weights, which constitutes the factual basis for a determination under section 1677a(d)(l)(B), leaves the record in this investigation incomplete. Although Commerce is given great latitude in interpreting statutes it administers, our appellate court has recently affirmed that an agency interpretation may not contravene the legislative intent. American Lamb Co. v. United States, No. 86-560, slip op. at 13 (Fed. Cir. Feb. 28, 1986). Accordingly, the Court remands the action for Commerce to state on the record the exported tube weights accepted as valid by Commerce, and how rebates to intervenors were allocated to the exported tubes for purposes of an adjustment under section 1677a(d)(l)(B). The Court has previously held that Commerce acted within its discretion in weighing sample tubes to determine tube weights for making merchandise adjustments, 9 CIT 532, 622 F. Supp. at 1081-83. But if the weights accepted by Commerce for the section 1677a(d)(l)(B) adjustment are different than the weights" }, { "docid": "18894388", "title": "", "text": "Memorandum Opinion and Order DiCarlo, Judge: Plaintiffs, domestic producers of tire tubes, challenge a final determination by the United States Department of Commerce, International Trade Administration (Commerce) that tubes for tires, other than bicycle tires (inner tubes), from Korea are not being sold in the United States at less than fair value. Tubes For Tires, Other Than Bicycle Tires, From the Republic of Korea (Final), Antidumping Investigation No. A-580-009, 49 Fed. Reg. 26,780 (1984). I. Background In July, 1983 seven domestic producers (petitioners) petitioned Commerce on behalf of the domestic inner tube industry alleging that inner tubes from Korea were, or were likely to be, sold in the United States at less than fair value, that these imports were materially injuring, or threatening to injure, an industry in the United States, and that an antidumping duty should be imposed under 19 U.S.C. § 1673 (1982). Commerce published notice of its determination to begin an investigation on August 12, 1983. 48 Fed. Reg. 36,637 (1983). The International Trade Commission found reasonable indication that imports of inner tubes were materially injuring, or threatening to materially injure, a United States industry. Tubes For Tires, Other Than For Bicycle Tires, From the Republic of Korea, Investigation No. 731-TA-137 (Preliminary), USITC Public. No. 1416, 48 Fed. Reg. 39,519 (1983). Commerce sent sales price and production cost questionnaires to two Korean producers, Heung-Ah Tire Ind. Co., Ltd. (Heung-Ah) and Dong Ah Tire Ind. Co., Ltd. (Dong-Ah), who together produce about 90 percent of the inner tubes exported from Korea to the United States. On February 10, 1984, Commerce published a preliminary determination that the Korean producers were not selling at less than fair value. 49 Fed. Reg. 5155. Commerce published its final negative determination on June 29, 1984, finding de minimis weighted-average dumping margins of 0.03% for Heung-Ah and 0.01% for Dong-Ah. 49 Fed. Reg. 26,780, 26,784. On July 25,1984, six of the petitioners (plaintiffs) sought review of Commerce’s determination, pursuant to 19 U.S.C. § 1516a(a)(2) (1982). On October 31, 1984, the administrative record was filed in the Court. Dong-Ah and Heung-Ah were granted leave to" }, { "docid": "14878432", "title": "", "text": "that margins of approximately .45 percent are de minimis in this investigation. To do this Commerce must explain the basis for its decision. See Motor Vehicle Manufacturers Ass’n. of the United States v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 48-49 (1983); Atchison, Topeka & Santa Fe Railway Co. v. Wichita Board of Trade, 412 U.S. 800, 808 (1973); SCM Corp. v. United States, 84 Cust. Ct. 227, 236-37, C.R.D. 80-2, 487 F. Supp. 96, 103-104 (1980). See Local 777, Democratic Union Organizing Comm. v. NLRB, 603 F.2d 862, 882 (D.C. Cir. 1978). Commerce has recognized that margins under .5 percent may not be de minimis. In 1981 Commerce, continuing previous Department of Treasury determinations in the case, found that a .37 percent subsidy on fasteners from Japan was not de minimis when compared wtih the duties on the merchandise, .7 and .2 percent ad valorem. Certain Fasteners From Japan, 46 Fed. Reg. 53484 (1981). Small margins may be important. Duties on the tubes for tires other than bicycle tires, classifiable under item 772.60, Tariff Schedules of the United States, are currently 3.9 percent. The United States negotiated staged reductions in duty for the merchandise by as little as .1 percent per year during the period 1980-1986. See Proclamation No. 4707, 44 Fed. Reg. 72348, 72527 (1979). Should Commerce choose to disregard the drawback adjustment, it must explain why the resulting margins of approximately .45 percent are de minimis in this investigation. Conflicting Tube Weight Determinations Intervenors paid Korea duty and defense tax when they imported synthetic rubber and other raw materials into Korea. Some of the materials were used in the manufacture of the tubes in this case. Pursuant to Korean law intervenors were entitled to a rebate of the duty and tax imposed on the raw materials used in making the tubes when the merchandise was exported from Korea. The parties disagree on the tube weights Korea used in assessing the rebate. Plaintiffs claim Korea assessed the rebate on the basis of higher invoice and packing list weights supplied by intervenors rather than lower weights Commerce" }, { "docid": "8867031", "title": "", "text": "drawback adjustment was reasonable because Commerce found that the drawback regime was reliable and that the respondent satisfied both prongs of the duty drawback eligibility test. This Court finds no reason to deviate from the court’s well-reasoned decision in Allied Tube. “The clear language of 19 U.S.C. § 1677a(c)(l)(B) does not require an inquiry into whether the price for products sold in the home market includes duties paid for imported inputs.” Id. at 1262. The Trade Act “allows a full upward adjustment,” Avesta, 17 CIT at 1216, to EP for the duties “which have not been collected,” 19 U.S.C. § 1677a(c)(l)(B). Further, this Court explicitly rejects Plaintiffs’ “contention that, as a prerequisite to receiving [a] duty drawback [adjustment], a company must demonstrate the payment of duties upon raw materials used to produce merchandise sold in the home market.” Allied Tube, 374 F. Supp. 2d at 1261. Insofar as Plaintiffs do not challenge Commerce’s finding that Saha Thai satisfied the two-pronged duty drawback eligibility test, this Court finds Commerce’s allowance of the duty drawback adjustment reasonable and in accordance with law. Conclusion For the reasons stated herein, the Court finds that Commerce’s allowance of § 201 duty billing adjustments and import duty drawback adjustments were reasonable and in accordance with law. However, the Court finds that Commerce’s failure to deduct § 201 duties from Respondent’s EP was not reasonable and not in accordance with law. Therefore, this case is affirmed in part and remanded to Commerce for recalculation of Saha Thai’s AD margin after deduction of § 201 duties from EP. Commerce’s remand results must be filed with the United States Court of International Trade on or before March 1, 2006. Sections 201 and 203 of the Trade Act of 1974, 19 U.S.C. §§ 2251 and 2253 (2000) permit the President of the United States to impose safeguard measures in reaction to threats posed to domestic industry by identified imported items. Section 772(a) of the Act defines the “export price” as the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation" }, { "docid": "8867024", "title": "", "text": "margin is calculated. Therefore, Commerce’s failure to deduct § 201 duties from EP was not in accordance with law. Accordingly, this Court remands this matter to Commerce to recalculate Saha Thai’s dumping margin after deducting § 201 duties from EP in accordance with 19 U.S.C. § 1677a(c)(2)(A). II. Duty Drawback Adjustment Section 772(c)(1)(B) of the Tariff Act, 19 U.S.C. § 1677a(c)(l)(B), requires Commerce to increase EP for eligible duty drawback received in the respondent’s home market. This practice is commonly known as a “duty drawback” adjustment. The duty drawback adjustment is limited to “the amount of any import duties imposed by the country of exportation which have been rebated, or which have not been collected, by reason of the exportation of the subject merchan dise to the United States.” 19 U.S.C. § 1677a(c)(l)(B) (emphasis added). The duty drawback adjustment is intended to prevent dumping margins from being created or affected by the rebate or exemption of import duties on inputs used in the production of exported merchandise. See Hevensa, 285 F. Supp. 2d at 1358; Allied Tube, 374 F. Supp. 2d at 1261. In other words, a duty drawback adjustment takes into account any difference in the prices for home market or normal value and export sales accounted for by the fact that such import duties have been paid on inputs used to produce the merchandise sold in the home market, but have not been paid on inputs used to make the merchandise exported to the United States. Hevensa, 285 F. Supp. 2d at 1358. To determine whether a respondent is eligible for a duty drawback adjustment, Commerce developed a two-pronged test. (Def.’s Br. at 9.) The test requires the respondent to establish that (1) the rebate and import duties are dependent upon one another, or in the context of an exemption from import duties, if the exemption is linked to the exportation of the subject merchandise; and (2) the respondent has demonstrated that there are sufficient imports of the raw material to account for the duty drawback on the exports of the subject merchandise. Allied Tube, 374 F. Supp." }, { "docid": "18894399", "title": "", "text": "mixing stage should be allocated according to the weight of the finished tubes, rather than by the employee time expended mixing the rubber. Plaintiffs claim that Dong-Ah began to allocate its labor costs at the rubber mixing stage according to time in December, 1983, after plaintiffs argued to Commerce that Dong-Ah’s cost of production exceeded its sales prices for larger tube sizes. Plaintiffs say that prior to that time Dong-Ah allocated the rubber mixing stage cost according to weight, and by shifting its allocation basis Dong-Ah moved labor costs away from larger tubes and towards smaller ones. Commerce determined that either weight or time is acceptable as a basis for allocating labor costs at the mixing stage. Commerce explained that Dong-Ah’s records are maintained on a time basis, and that there was no justification for changing Dong-Ah’s allocation method since \"any such adjustments would have an immaterial effect on the total cost of production.” 49 Fed. Reg. at 26,783. Plaintiffs’ arguments were considered by a Commerce accountant who determined that Dong-Ah’s time-based allocation was reasonable. Heung-Ah allocates its labor costs at the mixing stage by time, as does plaintiff Carlisle Tire & Rubber Company. Again, the Court must defer to Commerce’s expertise and judgment. The Court holds that Commerce’s acceptance of Dong-Ah’s time-based labor cost allocation was reasonable and in accordance with law. C. Calculation of Dong-Ah’s Cost of Manufacture Adjustments must be made in foreign market value to the extent that physical differences in the home market and export merchandise being compared result in differences in cost of production of the merchandise. 19 U.S.C. § 1677b(a)(4) (1982), 19 C.F.R. § 353.16 (1984). Intervenors’ inner tubes manufactured for export to the United States have more rubber content than tubes sold in the home market. In order to adjust foreign market value to account for this physical difference in home market and exported tubes, Commerce calculated the cost of manufacturing, or making, the tubes. To determine the cost of manufacture, Commerce used costs in the quarter in which the sale occurred, rather than six-month weighted average costs, which were used to" }, { "docid": "8437858", "title": "", "text": "determination, Commerce stated that it accounted for a rebate of the excise duty drawback by adding a duty drawback to the United States Price (USP) pursuant to 19 U.S.C. § 1677a(d)(l)(B) (1982), which provides for an upward adjustment to USP for customs duties that are rebated or uncollected by reason of exportation. 51 Fed.Reg. at 9,487. The record discloses that Commerce also deducted an amount for the excise duty drawback from each respondent’s foreign market value (FMV). Conf.R. 65-69. The plaintiffs assigned as error Commerce’s counting of the same taxes as both a duty drawback adjustment to USP and a reduction in material costs in the constructed FMV. In Serampore Indus. v. United States, 11 CIT —, 675 F.Supp. 1354, 1357 (1987), this Court remanded this issue to Commerce for recalculation as to Serampore only. Consistent with Serampore, Commerce asks this Court to remand this issue for recalculations as to RSI, Kejriwal, and Kajaria. This part of the action is remanded. The domestic producers also assign as error Commerce’s failure to make an adjustment for physical difference in merchandise. During verification, Commerce discovered that at least one of the respondents sold castings with nuts and bolts. R. 1429. The domestic producers assert that the addition of nuts and bolts increases the cost of the merchandise, Plaintiffs’ Memorandum in Support of Motion for Judgment on the Administrative Record, at 36-37, and argue that disregarding the physical difference in material costs in constructing FMV is inconsistent with the anti-dumping law, Commerce’s regulations, and Commerce’s prior practice. See 19 U.S.C. § 1677b(a)(4)(C) (1982); 19 C.F.R. § 353.16 (1986). At oral argument the defendant agreed to make the requested recalculation upon remand. This part of the action is remanded. The domestic producers challenge the inclusion in Commerce’s final analysis of one of RSI’s reported United States sales because that sale had been cancelled, and assert that Commerce improperly calculated certain United States selling and movement expenses for RSI. The domestic producers also assert that Commerce verified that a certain transaction involved the sale of light castings, but that Commerce mistakenly classified these castings as" } ]

[ { "docid": "6071931", "title": "", "text": "is consumed in placing the trial court in a position to dispose of a motion,” Henderson, 476 U.S. at 331, 106 S.Ct. 1871, noting that “[t]he phrase ‘prompt disposition’ was intended to prevent a district court from using subsection (F) to exclude time after a motion is taken under advisement when that time fails to qualify for exclusion under subsection (J).” Id. at 329, 106 S.Ct. 1871. The district court did not abuse its discretion in excluding the time from April 17, 2000 until June 19, 2000 under 18 U.S.C. § 3161(h)(1)(F), therefore we need not address the prejudice prong. Given this exclusion, Hemmings was brought to trial well within the seventy-day limit, and his Speedy Trial Act claims fail. B. Constitutional Challenges Hemmings’ various Constitutional challenges to subsections (1) and (9) of 18 U.S.C. § 922(g) also fail. The majority of his Constitutional claims are foreclosed by prior rulings in this circuit, and we address them only briefly. This circuit has rejected claims that § 922(g)(1) and § 922(g)(9) violate the Commerce Clause, noting that the jurisdictional element of § 922(g) provides the required nexus with interstate commerce. See Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir.1999) (addressing § 922(g)(9)), cert. denied, 528 U.S. 1116, 120 S.Ct. 934, 145 L.Ed.2d 813 (2000); United States v. Williams, 128 F.3d 1128, 1134-35 (7th Cir.1997) (addressing § 922(g)(1)). Furthermore, as we noted in United States v. Jester, 139 F.3d 1168, 1170 (7th Cir.1998), § 922(g) “does not punish a person solely for his or her status as a convicted felon.” Hemmings has failed to make any showing that the statute in this case violates the Second Amendment, see Gillespie, 185 F.3d at 710-11, or the Tenth Amendment. Id. at 707-08. Sections 922(g)(1) and 922(g)(9) are not ex post facto laws. Other circuits have reached this same conclusion. See, e.g., United States v. Mitchell, 209 F.3d 319, 322 (4th Cir.), cert. denied, 531 U.S. 849, 121 S.Ct. 123, 148 L.Ed.2d 78 (2000); United States v. Brady, 26 F.3d 282, 291 (2d Cir.1994). A law is not retroactive simply because it “draws" } ]

[ { "docid": "22197062", "title": "", "text": "motion for new counsel. He also challenges whether section 922(g) could be constitutionally applied to the facts of his case where Ms possession of the gun did not affect interstate commerce. We will address his Sixth Amendment claim in two parts, first considering whether the district court abused its discretion in denying Harris’s motion for new counsel and then addressing whether the denial of the motion resulted in ineffective assistance of counsel. But first we will turn to his section 922(g) claim, which is well-settled in this jurisdiction. A. Harris challenges his section 922(g) conviction on the grounds that Congress may not constitutionally regulate his wholly intrastate possession of a gun under the Commerce Clause. He contends that the gun’s manufacture in another state is an inadequate interstate connection under the Supreme Court’s reasoning in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). We need not dwell on this issue for long because as Harris concedes, we have already resolved this issue in prior appeals and Harris offers us no compelling reason to change our prior rulings. See United States v. Thompson, 359 F.3d 470, 480 (7th Cir. 2004) (rejecting an identical Commerce Clause claim based on Lopez and Jones and collecting cases where we rejected similar or identical claims); United States v. Harris, 325 F.3d 865, 873-74 (7th Cir.2003) (finding that Lopez and Jones did not implicitly overrule Scarborough v. United States, 431 U.S. 563, 577, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), where the Supreme Court held that proof that a firearm had previously crossed state lines was adequate to show that possession of the gun was “in or affecting commerce”); United States v. Lemons, 302 F.3d 769, 771-72 (7th Cir.), cert. denied, 537 U.S. 1049, 123 S.Ct. 642, 154 L.Ed.2d 523 (2002) (same); United States v. Wesela, 223 F.3d 656, 659-60 (7th Cir.2000), cert. denied, 531 U.S. 1174, 121 S.Ct. 1145, 148 L.Ed.2d 1008 (2001) (finding that nothing in Jones or Lopez casts doubt on the" }, { "docid": "14235634", "title": "", "text": "of the U.S. Sentencing Guidelines Manual for using a minor, Jeremy Mid-gett, to commit a crime. Hodges did not dispute that Midgett was a minor at the time of the robbery, but argued that it was Thompson who “used” Midgett. The government pointed to Midgett’s role in help ing to carry the guns into Hodges’ apartment as well as conversations between Hodges and Thompson while Midgett was present concerning Hodges’ ability to fence stolen guns. The district court found that Hodges “used” Midgett to commit the crimes and increased Hodges’ base offense level by two. This increase resulted in a sentence of 188 months in prison, followed by three years of supervised release, and a $1,000 fine and $100 special assessment. Following the procedural turns related to the district court judge’s ex parte communications with the jury, this appeal ensued. ANALYSIS A. Sufficiency of the Evidence We first discuss Hodges’ argument that there was insufficient evidence to support his convictions by a jury beyond a reasonable doubt. We review this claim in a light most favorable to the government and will overturn a conviction only if no rational trier of fact could have found Hodges guilty beyond a reasonable doubt. United States v. Emerson, 128 F.3d 557, 560 (7th Cir.1997). To convict Hodges of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), the government must have proven beyond a reasonable doubt that: 1) Hodges had a prior felony conviction; 2) he possessed or received a firearm; and 3) the firearm traveled in or affected interstate commerce. 18 U.S.C. § 922(g)(1) (2002); United States v. Garrett, 903 F.2d 1105, 1110 (7th Cir.1990). To be convicted of receiving stolen firearms under 18 U.S.C. § 922Q), the government needed to prove beyond a reasonable doubt that: 1) Hodges received or possessed stolen firearms; 2) which moved or were shipped in interstate commerce before or after being stolen; and 3) Hodges knew or had reasonable cause to believe that they were stolen. 18 U.S.C. § 922(j); United States v. Buchmeier, 255 F.3d 415, 421 (7th Cir.2001). Hodges" }, { "docid": "13745228", "title": "", "text": "the gun and interstate commerce, Congress had no authority under the Commerce Clause, see U.S. Const. Art. I, § 8, cl. 3, to reach his possession of the gun. See United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (holding that Gun-Free School Zones Act of 1990, which proscribed possession of a firearm within 1000 feet of a school, exceeded congressional authority under Commerce Clause because it reached conduct that did not substantially affect or have a meaningful connection with interstate commerce). Williams did not make this argument below, so our review is solely for plain error. E.g., United States v. Rogers, 89 F.3d 1326, 1338 (7th Cir.1996). As Williams himself acknowledges, our precedents foreclose his argument; indeed, Williams indicates that he is making the argument solely to preserve it for Supreme Court review. It suffices to note that we have held repeatedly that section 922(g)(1), because it requires proof that the defendant possessed a firearm “in or affecting commerce,” represents a valid exercise of congressional authority under the Commerce Clause. E.g., United States v. Olson, 408 F.3d 366, 372 (7th Cir.2005) (citing United States v. Lemons, 302 F.3d 769, 772 (7th Cir.2002)). We have also held that so long as the firearm crossed state lines at any point prior to the defendant’s possession of the gun, his possession is “in or affecting commerce.” E.g., id. (citing Lemons, 302 F.3d at 772-73); United States v. Harris, 394 F.3d 543, 551 (7th Cir.2005). B. Findings as to Criminal History As we noted above, Williams’ criminal history affected the calculation of his sentencing range in two ways. First, the determination that two of Williams’ prior convictions were for crimes of violence resulted in a higher base offense level. See U.S.S.G. § 2K2.1(a)(2). Second, the nature and extent of his prior criminal history placed him in. the highest criminal history category. In both respects, Williams’ prior convictidns increased his sentencing range substantially. In pleading guilty, Williams admitted to one of his prior convictions, which was necessary to establish his status as a convicted felon who was prohibited from" }, { "docid": "13745229", "title": "", "text": "Clause. E.g., United States v. Olson, 408 F.3d 366, 372 (7th Cir.2005) (citing United States v. Lemons, 302 F.3d 769, 772 (7th Cir.2002)). We have also held that so long as the firearm crossed state lines at any point prior to the defendant’s possession of the gun, his possession is “in or affecting commerce.” E.g., id. (citing Lemons, 302 F.3d at 772-73); United States v. Harris, 394 F.3d 543, 551 (7th Cir.2005). B. Findings as to Criminal History As we noted above, Williams’ criminal history affected the calculation of his sentencing range in two ways. First, the determination that two of Williams’ prior convictions were for crimes of violence resulted in a higher base offense level. See U.S.S.G. § 2K2.1(a)(2). Second, the nature and extent of his prior criminal history placed him in. the highest criminal history category. In both respects, Williams’ prior convictidns increased his sentencing range substantially. In pleading guilty, Williams admitted to one of his prior convictions, which was necessary to establish his status as a convicted felon who was prohibited from possessing a firearm. R. 41 at 18-19; see § 922(g)(1); see also, e.g., United States v. Gilbert, 391 F.3d 882, 883 (7th Cir.2004). He did not otherwise formally acknowledge the breadth and nature of his criminal record, however (although, as we have noted, he posed no objections to the PSR). Had Williams’ criminal history been disregarded at sentencing with the exception of the one prior conviction he acknowledged, his base offense level likely would have been 20, see § 2K2.1(a)(4)(A), his adjusted offense level would have been 19, and with a criminal history category of II (for the two criminal history points assigned to the admitted conviction), the sentencing range specified by the Guidelines would have been 33 to 41 months. Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Williams contends that unless admitted by a defendant, the fact and nature of any prior convictions that expose him to a higher penalty must be determined by a jury rather than by the sentencing judge. Apprendi held that" }, { "docid": "14235635", "title": "", "text": "favorable to the government and will overturn a conviction only if no rational trier of fact could have found Hodges guilty beyond a reasonable doubt. United States v. Emerson, 128 F.3d 557, 560 (7th Cir.1997). To convict Hodges of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), the government must have proven beyond a reasonable doubt that: 1) Hodges had a prior felony conviction; 2) he possessed or received a firearm; and 3) the firearm traveled in or affected interstate commerce. 18 U.S.C. § 922(g)(1) (2002); United States v. Garrett, 903 F.2d 1105, 1110 (7th Cir.1990). To be convicted of receiving stolen firearms under 18 U.S.C. § 922Q), the government needed to prove beyond a reasonable doubt that: 1) Hodges received or possessed stolen firearms; 2) which moved or were shipped in interstate commerce before or after being stolen; and 3) Hodges knew or had reasonable cause to believe that they were stolen. 18 U.S.C. § 922(j); United States v. Buchmeier, 255 F.3d 415, 421 (7th Cir.2001). Hodges does not dispute that he was convicted of a felony in 1991, nor that the guns traveled in interstate commerce. Nor does he dispute that he knew the guns were stolen. So, the only issue with respect to the convictions is whether there was sufficient evidence for a rational jury to conclude beyond a reasonable doubt that Hodges possessed or received the firearms in question. On the issue of Hodges’ possession and receipt of the stolen guns, both Thompson and Midgett testified: 1) that they stole the guns and took them directly to Hodges’ apartment; 2) that they carried them into his home with Hodges’ help; 3) that he then inspected the guns and told the boys he could sell them for $700 or $800; and 4) that he wiped them down to remove his fingerprints and stored the guns in his bedroom. Hodges contends that Thompson’s and Midgett’s credibility is suspect because both boys have criminal pasts and because Midgett gave conflicting statements to the grand jury. Specifically, Hodges points to Midgett’s trial testimony" }, { "docid": "21082265", "title": "", "text": "prove Thomas was responsible for the interstate transportation of the ammunition he was found to possess. It requires, instead, a showing that the possession of the ammunition was “in or affecting commerce.” Id. He argues that this lesser burden is an unconstitutional exercise of the Commerce Clause. U.S. Const, art. I, § 8, cl. 3. But this argument fails. As we have held before on multiple occasions, this jurisdictional element of § 922(g) satisfies the requirements of our Commerce Clause jurisprudence. See United States v. Vallejo, 373 F.3d 855, 860-61 (7th Cir.2004) (remanded on separate grounds); United States v. Keller, 376 F.3d 713, 716-17 (7th Cir.2004) (remanded on separate grounds); United States v. Lemons, 302 F.3d 769, 771-73 (7th Cir.2002); United States v. Mitchell, 299 F.3d 632, 634-35 (7th Cir.2002); United States v. Bell, 70 F.3d 495, 497-98 (7th Cir.1995). Until the Supreme Court provides further guidance on the matter, our decisions stand. E. Sentencing Lastly, Thomas challenges the term of his sentence. He argues that the district court erred in finding certain aggravating factors by a preponderance of the evidence only, and that these findings were then imposed under a mandatory sentencing scheme contrary to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). He did not make these arguments at trial, however, so we review his claims for plain error. United States v. Paladino, 401 F.3d 471, 481 (7th Cir.2005). Thomas bears the burden of demonstrating this plain error under Federal Rule of Criminal Procedure 52(b). See Olano, 507 U.S. at 732-34, 113 S.Ct. 1770; United States v. Lee, 399 F.3d 864, 866 (7th Cir.2005). For Thomas to prove plain error, he must, among other things, establish that the error violated his substantial rights-“which is to say that it made the defendant worse off.” Lee, 399 F.3d, at 866. This he cannot do. At the sentencing hearing, the district court adopted the information provided in the PSR. Based upon the jury’s verdict and his prior controlled substance offenses, Thomas’s base offense level was 24. The district court, however, found that Thomas possessed the" }, { "docid": "21848210", "title": "", "text": "could not rely on the warrant. We cannot accept this submission. As explained above, the controlled buy, the informant’s description of Mr. Sidwell’s apartment unit and the drug paraphernalia in the hallway outside of Mr. Sidwell’s apartment provided Officer Hasse with, at a minimum, indicia of illegal drug dealing in that apartment. The officers’ reliance on the warrant was therefore in good faith. B. 18 U.S.C. § 922(g) Lastly, Mr. Sidwell submits that 18 U.S.C. § 922(g) is unconstitutional because, in enacting this statute, Congress exceeded its power under the Commerce Clause. We review rulings regarding the constitutionality of a federal statute de novo. United States v. Schaffner, 258 F.3d 675, 678 (7th Cir.2001). We have rejected, on numerous occasions, Commerce Clause challenges to § 922(g), noting that the “jurisdictional element of § 922(g) provides the required nexus with interstate commerce.” United States v. Hemmings, 258 F.3d 587, 594 (7th Cir.2001). Mr. Sidwell nevertheless asks us to re-examine our decisions upholding the constitutionality of 18 U.S.C. § 922(g), contending that they are inconsistent with the Supreme Court’s decision in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). This argument also has been previously rejected, and we do not find a compelling reason to reconsider these rulings in this case. See United States v. Mitchell, 299 F.3d 632, 635 (7th Cir.2002) (holding that Morrison does not implicate the constitutionality of § 922(g)); United States v. Wesela, 223 F.3d 656, 660 (7th Cir.2000). Conclusion For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED . For courts recognizing this proposition, see United States v. Pennington, 287 F.3d 739, 742-43 (8th Cir.2002); United States v. McKinney, 143 F.3d 325, 329 (7th Cir.1998); United States v. Reddrick, 90 F.3d 1276, 1281 (7th Cir.1996); United States v. Smith, 63 F.3d 956, 961 (10th Cir.1995), vacated on other grounds, 516 U.S. 1105, 116 S.Ct. 900, 133 L.Ed.2d 834 (1996); United States v. Garcia, 983 F.2d 1160, 1167 (1st Cir.1993). . See, e.g., United States v. Olson, 408 F.3d 366, 372-73 (7th Cir.2005); United States v. Thompson, 359" }, { "docid": "22570134", "title": "", "text": "element that § 922(g) does not, i.e., active use or carrying of a firearm. “Therefore, each statutory provision includes an element that the other does not, and multiple punishments are presumed.” S. Johnson, 219 F.3d at 359; United States v. Garrett, 903 F.2d 1105, 1114-15 (7th Cir.1990) (rejecting argument that because “sections 922(g) and 924(c) constitute multiple punishments for the same criminal conduct — possession of a firearm,” consecutive sentences imposed for convictions under both 18 U.S.C.A. §§ 922(g) and 924(c) violate the Double Jeopardy clause); cf. United States v. Presley, 52 F.3d 64, 68 (4th Cir.1995) (stating that the Armed Career Criminal Act “does not violate the Double Jeopardy Clause”). B. Studifin next argues that his sentence constitutes improper double counting under the Guidelines because the district court both enhanced his offense level under the Armed Career Criminal guideline, United States Sentencing Commission, Guidelines Manual, § 4B1.4 (Nov.1998), and also imposed the statutory mandatory minimum under § 924(c). Such double counting, however, is not per se improper. See United States v. Crawford, 18 F.3d 1173, 1179-80 (4th Cir.1994) (stating that “triple counting” the same conduct under the Guidelines “will be upheld unless it is expressly prohibited by the guidelines” because “the guidelines should be applied as written” (internal quotation marks omitted)); United States v. Sanders, 982 F.2d 4, 6-7 (1st Cir.1992) (finding no impermissible double counting where Sanders was convicted under § 922(g) and § 924(c) and also received an enhancement under U.S.S.G. § 4B1.4 as an armed career criminal); see also 18 U.S.C.A. § 924(c)(1)(A) (providing that the mandatory minimum sentence should apply even where the underlying crime already “provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device”); cf. B. Johnson, 32 F.3d at 86 (“[T]he penalty provision of § 924(c)(1) states that the term of incarceration shall be ‘in addition to the punishment provided for such crime of violence.’ This penalty provision further supports our view that Congress was well aware of the cumulative sentencing effect of § 924(c)(1).”). Studifin points to U.S.S.G. § 2K2.4, which provides that" }, { "docid": "22570133", "title": "", "text": "each requires proof of an element that the other does not. Section 922(g)(1) requires proof (1) that the defendant had been previously convicted of a crime punishable by imprisonment for a term exceeding one year; (2) that the defendant knowingly possessed, transported, shipped, or received, the firearm; and (3) that the possession of the firearm was in or affecting interstate commerce because the firearm had traveled in interstate or foreign commerce at some point during its existence. See United States v. Langley, 62 F.3d 602, 606 (4th Cir.1995) (stating elements of § 922(g)). Section 924(c), by contrast, requires proof (1) that the defendant actively used or carried a firearm; (2) during and in relation to his commission of a crime of violence or drug trafficking crime. See United States v. Mitchell, 104 F.3d 649, 652 (4th Cir.1997) (stating elements of § 924(c)). Thus, violation of § 922(g) requires proof of an element that § 924(c) does not, i.e., that the defendant was a previously convicted felon; and violation of § 924(e) requires proof of an element that § 922(g) does not, i.e., active use or carrying of a firearm. “Therefore, each statutory provision includes an element that the other does not, and multiple punishments are presumed.” S. Johnson, 219 F.3d at 359; United States v. Garrett, 903 F.2d 1105, 1114-15 (7th Cir.1990) (rejecting argument that because “sections 922(g) and 924(c) constitute multiple punishments for the same criminal conduct — possession of a firearm,” consecutive sentences imposed for convictions under both 18 U.S.C.A. §§ 922(g) and 924(c) violate the Double Jeopardy clause); cf. United States v. Presley, 52 F.3d 64, 68 (4th Cir.1995) (stating that the Armed Career Criminal Act “does not violate the Double Jeopardy Clause”). B. Studifin next argues that his sentence constitutes improper double counting under the Guidelines because the district court both enhanced his offense level under the Armed Career Criminal guideline, United States Sentencing Commission, Guidelines Manual, § 4B1.4 (Nov.1998), and also imposed the statutory mandatory minimum under § 924(c). Such double counting, however, is not per se improper. See United States v. Crawford, 18 F.3d" }, { "docid": "6501160", "title": "", "text": "F.3d 1085, 1095 (7th Cir.1997). The error must have affected the substantial rights of the parties, thus calling into question the fairness, integrity, or public reputation of the judicial process. United States v. Montenegro, 231 F.3d 389, 393 (7th Cir.2000). Put another way, under the plain error doctrine, we will reverse only where the trial court’s error is “clear, prejudicial, and affects substantial rights.” United States v. Carrillo, 269 F.3d 761, 768 (7th Cir.2001). However, even if there has been plain error, “we have the power to correct the error but are not required to do so.” United States v. Cusimano, 148 F.3d 824, 828 (7th Cir.1998). 2. As noted previously, Conley argues that the indictment violates his rights against multiple punishments for the same crime. The imposition of more than one conviction for the same criminal act violates the Double Jeopardy Clause of the Fifth Amendment. Schiro v. Farley, 510 U.S. 222, 229, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994); United States v. Colvin, 276 F.3d 945, 948 (7th Cir.2002); United States v. Handford, 39 F.3d 731, 735 (7th Cir.1994). In this case, the Government concedes that Congress intended that persons convicted of violating 18 U.S.C. § 922(g)(1) should be punished only for possessing weapons in separate courses of conduct. Thus, under circumstances similar to this case, a felon may be charged and convicted of two counts of possessing the same firearm only if: (1) he possesses the weapon; (2) he is aware that his possession of the weapon has been interrupted; and (3) he thereafter reacquires possession of the weapon himself. United States v. Rivera, 77 F.3d 1348 (11th Cir.1996); United States v. Horodner, 993 F.2d 191 (9th Cir.1993); United States v. Jones, 533 F.2d 1387 (6th Cir.1976); see also United States v. Capozzi, 73 F.Supp.2d 75, 82 (D.Mass.1999). Put another way, the Government may charge and convict an individual of multiple violations of § 922(g)(1) only if “it can produce evidence demonstrating that the firearms were stored or acquired separately and at different times or places.” United States v. Buchmeier, 255 F.3d 415, 423 (7th Cir.2001); see" }, { "docid": "3965623", "title": "", "text": "interstate commerce and therefore 18 U.S.C. § 922(g)(1) exceeds Congress’ power and is unconstitutional. Mr. Thompson concedes that “this issue has been decided against him.” Appellant’s Br. at 23 (citing Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), and United States v. Harris, 325 F.3d 865, 873-74 (7th Cir. 2003)). He finally asserts that the Supreme Court in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), employed language that indicates that his possession of the ammunition was not economic activity that affects interstate commerce. Mr. Thompson, however, continues to “raise[ ] this issue so he may preserve his rights if the Supreme Court decides to revisit” its earlier decision. Appellant’s Br. at 23. We agree with Mr. Thompson that the issue of whether 18 U.S.C. § 922(g)(1) exceeds Congress’ power to regulate interstate commerce has been decided against him. Indeed, we have considered and rejected the issue of whether the Supreme Court’s holding in Lopez renders the statute unconstitutional. See, e.g., United States v. Fleischli, 305 F.3d 643, 653 (7th Cir.2002) (rejecting a similar commerce clause argument based on Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000)); United States v. Lemons, 302 F.3d 769, 771-73 (7th Cir.2002) (rejecting similar argument based on Lopez); United States v. Mitchell, 299 F.3d 632, 633-35 (7th Cir.2002) (rejecting commerce clause argument based on Lopez, United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones); United States v. Wesela, 223 F.3d 656, 659-60 (7th Cir.2000) (same); United States v. Williams, 128 F.3d 1128, 1133-34 (7th Cir.1997) (rejecting commerce clause challenge based on Lopez ). Conclusion For the foregoing reasons, we affirm the judgment of the district court. Affirmed . Although the details of the warrant are not entirely clear, on cross-examination at trial Shinnamon testified that the warrant was issued because Mr. Thompson pointed a firearm at her. The Government further explained at oral argument that this altercation occurred on October 24, 2001. . Inexplicably, after the bullets were seized the" }, { "docid": "13397132", "title": "", "text": "Lawrence, 951 F.2d 751, 753-56 (7th Cir.1991), this court has consistently held that the disparity of the penalty structure imposed by the Guidelines between cocaine base and cocaine powder is constitutional. We shall not overrule existing precedent. 3. Finally, Mr. Westbrook asserts that the federal crack cocaine laws usurp the states’ traditional police powers under the Tenth Amendment. As we recognized in United States v. Kenney, 91 F.3d 884, 891 (7th Cir.1996), however, the Congress may regulate conduct that a state may also regulate. When the law or regulation in question is a proper exercise of congressional power under the Commerce Clause and does not require state action, the statute does not violate the Tenth Amendment. Id. (holding that 18 U.S.C. § 922(o) does not violate the Tenth Amendment). The same argument has been made in the context of 21 U.S.C. §§ 841 and 846 as well. See United States v. Lerebours, 87 F.3d 582, 585 (1st Cir.1996) (holding that “courts will not strike down a statute under the Tenth Amendment where Congress was within its powers under the Commerce Clause to enact the statute”) (citing United States v. Owens, 996 F.2d 59, 60-61 (5th Cir.1993)), cert. denied, - U.S. -, 117 S.Ct. 694, 136 L.Ed.2d 617 (1997). We conclude that the federal statutes criminalizing conduct involving narcotics trafficking, such as the conspiracy to distribute crack at issue here, are constitutional as a proper exercise of Congress’ powers under the Commerce Clause. Conclusion For the foregoing reasons, we affirm the judgment of the district court. Affirmed. . When Charles Dean testified at trial, he presented a different version of the departure from room 228. He claimed that Mrs. Westbrook met him and her husband on the stairs to tell them that two state police officers were parked nearby. He testified that the three of them got into the car and that he then got out of the car, returned to room 228 by himself, came down the stairs and buried 10 ounces of crack cocaine under a pine tree behind the Red Roof Inn. Dean testified that, when he was" }, { "docid": "23625522", "title": "", "text": "841(a)(1), and of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Kitchen appeals, suggesting that the evidence was insufficient to support both determinations. II. A defendant challenging the sufficiency of the evidence supporting a jury’s verdict bears a “heavy burden.” United States v. Olson, 978 F.2d 1472, 1478 (7th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993). Both the evidence and all of the reasonable inferences that can be drawn from the evidence are viewed in the light most favorable to the government. United States v. Garrett, 903 F.2d 1105, 1109 (7th Cir.), cert. denied, 498 U.S. 905, 111 S.Ct. 272, 112 L.Ed.2d 227 (1990). After applying this standard, we must uphold the verdict if a rational trier of fact could have found the existence of each element of the crime beyond a reasonable doubt. Id. Here, Kitchen mounts challenges to both counts of his conviction — that for possession of cocaine and that for possession of a firearm. He suggests, particularly, that the element of possession was not established in either case. To convict Kitchen of the unlawful possession of a firearm by a felon, the government had the burden of proving: (1) that he had a previous felony conviction, (2) that he possessed a firearm and (3) that the firearm had traveled in or affected interstate commerce. See 18 U.S.C. § 922(g)(1); Garrett, 903 F.2d at 1110; United States v. Petitjean, 883 F.2d 1341, 1347 (7th Cir.1989). Kitchen does not contest the first and third elements of his conviction, but he does contend that evidence supporting the second element is lacking. Possession may be either actual or constructive. Garrett, 903 F.2d at 1110 (citing United States v. Taylor, 728 F.2d 864, 868 (7th Cir.1984)). This means, essentially, that possession as an element of the crime can be established despite the fact that the firearm was not in the immediate possession or control of the defendant. See id. In Garrett, we noted: Constructive possession exists when a person does not have actual possession but instead knowingly has the" }, { "docid": "3257710", "title": "", "text": "do not violate the Double Jeopardy Clause. After vacating Johnson’s convictions on Counts 3 and 6 and Behrens’ conviction on Count 8, the remaining substantive drug offense counts are Count 4, charging an attempt to manufacture amphetamine in violation of § 846 and 18 U.S.C. § 2, and Count 5, charging possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The plain language of these statutory provisions clearly evidences congressional intent that convictions and punishments separate from the other drug offenses charged be imposed for violations of each. Finally, we note that Spears was separately convicted for violations of both 18 U.S.C. § 924(c) and 18 U.S.C. § 922(g), which prohibits possession of a firearm, “in or affecting commerce,” after being convicted “of a crime punishable by imprisonment for a term exceeding one year.” We join with other circuits in concluding that separate convictions under § 924(c) and under § 922(g) do not violate the Double Jeopardy Clause. United States v. Lawrence, 928 F.2d 36 (2d Cir.1991); United States v. McKinney, 919 F.2d 405, 416-17 (7th Cir.1990); United States v. Hunter, 887 F.2d 1001, 1003 (9th Cir.1989), cert. denied, 493 U.S. 1090, 110 S.Ct. 1159, 107 L.Ed.2d 1062 (1990). In McKinney, the Seventh Circuit stated that “[i]t is obvious that conviction of the offense under Section 924(c)(1) requires proof of elements not required for conviction under 922(g)(1), and vice versa.” Section [922(g)(1) ] is a penalty for a felon who possesses a firearm, while section [924(c)(1)] addresses Congress’ concern with the more heinous crime of drug trafficking with a firearm. Therefore, the two charges satisfy the Blockburger test. McKinney, 919 F.2d at 417 (quoting Hunter, 887 F.2d at 1003) (footnote omitted). We agree. C. Conspiracy to Violate 18 U.S.C. # m(c) All four appellants were charged in Count 2 and convicted of a conspiracy under 18 U.S.C. § 371 to violate 18 U.S.C. § 924(c), which prohibits using or carrying firearms during or in relation to a drug-trafficking crime. In United States v. Hill, 971 F.2d 1461 (10th Cir.1992)" }, { "docid": "21082264", "title": "", "text": "talking to the emergency operator, the caller described two separate shooters, one of whom ran around the front of the building, but then returned to his wounded friend who lay at the rear of the Intrepid, where he stayed until the police arrived. Finally, Officer Fahrney testified that he arrived at the crime scene to find Thomas standing near the body of Brown, who lay at the end of the Intrepid. These three stories, provided by wholly unrelated witnesses, neatly mesh together to create a deeply persuasive time line of events for that unfortunate morning. Despite the error at trial, we deny Thomas relief on this claim. D. Constitutionality of 18 U.S.C. § 922(g)(1) Thomas briefly challenges the constitutionality of 18 U.S.C. § 922(g)(1) as applied to his “purely intrastate” possession of ammunition. Plaintiffs Br. 48. Because he failed to raise this argument at trial, we review his claim for plain error. United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Section 922(g) does not require the government to prove Thomas was responsible for the interstate transportation of the ammunition he was found to possess. It requires, instead, a showing that the possession of the ammunition was “in or affecting commerce.” Id. He argues that this lesser burden is an unconstitutional exercise of the Commerce Clause. U.S. Const, art. I, § 8, cl. 3. But this argument fails. As we have held before on multiple occasions, this jurisdictional element of § 922(g) satisfies the requirements of our Commerce Clause jurisprudence. See United States v. Vallejo, 373 F.3d 855, 860-61 (7th Cir.2004) (remanded on separate grounds); United States v. Keller, 376 F.3d 713, 716-17 (7th Cir.2004) (remanded on separate grounds); United States v. Lemons, 302 F.3d 769, 771-73 (7th Cir.2002); United States v. Mitchell, 299 F.3d 632, 634-35 (7th Cir.2002); United States v. Bell, 70 F.3d 495, 497-98 (7th Cir.1995). Until the Supreme Court provides further guidance on the matter, our decisions stand. E. Sentencing Lastly, Thomas challenges the term of his sentence. He argues that the district court erred in finding certain aggravating factors" }, { "docid": "7530245", "title": "", "text": "Taylor argues, at most, he could have been a lookout. Defendants’ arguments are without merit. Again, they ask us to reweigh the evidence, which we may not do. See Mojica, 984 F.2d at 1435. Given the identification that Dawg Life was involved in the sale of illegal drugs, that these were Dawg Life crack houses, that commercial sales had taken place in these houses, see United States v. Church, 970 F.2d 401, 406 (7th Cir.1992), that Phillips and Taylor were both higher-ranking G. Loes, and that G. Loes were known to supervise the sale of drugs by the lower-ranking Little Loes, there was sufficient evidence for the jury to find guilt beyond a reasonable doubt. 4. Phillips’ Possession of a Firearm Phillips was convicted as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and now argues there was insufficient evidence to show his possession of any of the firearms seized at the raid on 303 LaPorte Street when he was arrested. To obtain a conviction for felon-in-possession under § 922(g)(1), the government must establish beyond a reasonable doubt that (1) the defendant had a previous felony conviction, (2) the defendant possessed a firearm, and (3) the firearm had traveled in or affected interstate commerce. United States v. Walls, 225 F.3d 858, 864 (7th Cir.2000) (citations omitted). The only element at issue is Phillips’ “possession” of a firearm. Possession may be demonstrated by either actual or constructive possession. Id. (citation omitted). Actual possession may be shown by direct physical control of the firearm. Id. Constructive possession occurs when the defendant “knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.” United States v. Garrett, 903 F.2d 1105, 1110 (7th Cir.1990) (emphasis and citations omitted). In fact, the government presented sufficient evidence to show both actual and constructive possession of firearms located at 303 LaPorte. Phillips had direct control of the Taurus handgun found under the cushion next to him on the sofa. He had constructive possession of the other firearms in" }, { "docid": "6797711", "title": "", "text": "affirm Fleischli’s convictions on Counts 1 and 3. D. Fleischli challenges his conviction under 18 U.S.C. § 922(g)(1), the “felon in possession” statute, because the government was not required to prove that his possession of firearms substantially affected interstate commerce. Again Fleischli acknowledges that we have rejected an identical argument in the past. See Gillespie, 185 F.3d at 705. This time he maintains that Gillespie cannot stand in light of Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). But we have rejected that argument as well, and Fleischli offers us no reason to reconsider our earlier opinions. See United States v. Mitchell, 299 F.3d 632, 634-35 (7th Cir.2002); United States v. Wesela, 223 F.3d 656, 660 (7th Cir.2000), cert. denied, 531 U.S. 1174, 121 S.Ct. 1145, 148 L.Ed.2d 1008 (2001). See also United States v. Singletary, 268 F.3d 196, 205 (3rd Cir.2001), cert. denied, — U.S.-, 122 S.Ct. 1450, 152 L.Ed.2d 391 (2002) (collecting cases). E. We next review Fleischli’s claim that section 922(g)(1) does not extend to firearms possessed in Fleischli’s home or business. He bases this argument on Jones, stating that the possession of firearms in a home or non-firearms related business (presumably Otto American Boiler) is not in any sense commercial activity. Thus, he argues, as applied to him, section 922(g)(1) exceeds Congress’s powers under the Commerce Clause. This is a curious argument given Fleischli’s claim above that he did not personally possess any of the firearms but rather held them as an agent of SAS, a licensed firearms manufacturer. In that capacity, we have no doubt he would concede his possession of firearms affected commerce. Fleischli is entitled to argue in the alternative, however. This claim is really just a slightly different twist on Fleischli’s claim above that the government should have been required to prove that his possession of firearms substantially affected interstate commerce. We have held numerous times that the Commerce Clause requirement is met in the case of firearms possession when the guns have previously traveled in interstate commerce. See Mitchell, 299 F.3d at 634-35; Wesela, 223" }, { "docid": "13397131", "title": "", "text": "School Zones Act, “includes specific findings that intrastate drug activity has a substantial effect on interstate drug activities and that effective control of drug activities occurring intrastate requires both interstate and intrastate regulation”), cert. denied, — U.S. -, 117 S.Ct. 1437, 137 L.Ed.2d 544 (1997). We join the other circuits that uniformly have held, after Lopez, that it was-within the authority of the Congress under the Commerce Clause to create drug laws criminalizing narcotics transactions such as those found under 21 U.S.C. §§ 846 and 841. We hold that 21 U.S.C. §§ 841 and 846, under which Mr. Westbrook was convicted, pass constitutional muster. 2. Mr. Westbrook also asserts that the law governing crack, which establishes a 100-to-l disparity between crack and powder cocaine, is unconstitutional on its face and as applied. In light of the fact that every constitutional challenge to the penalty differential found in 21 U.S.C. § 841 and § 2Dl.l(c) of the Sentencing Guidelines has failed, this argument cannot succeed. Since our first consideration of the issue in United States v. Lawrence, 951 F.2d 751, 753-56 (7th Cir.1991), this court has consistently held that the disparity of the penalty structure imposed by the Guidelines between cocaine base and cocaine powder is constitutional. We shall not overrule existing precedent. 3. Finally, Mr. Westbrook asserts that the federal crack cocaine laws usurp the states’ traditional police powers under the Tenth Amendment. As we recognized in United States v. Kenney, 91 F.3d 884, 891 (7th Cir.1996), however, the Congress may regulate conduct that a state may also regulate. When the law or regulation in question is a proper exercise of congressional power under the Commerce Clause and does not require state action, the statute does not violate the Tenth Amendment. Id. (holding that 18 U.S.C. § 922(o) does not violate the Tenth Amendment). The same argument has been made in the context of 21 U.S.C. §§ 841 and 846 as well. See United States v. Lerebours, 87 F.3d 582, 585 (1st Cir.1996) (holding that “courts will not strike down a statute under the Tenth Amendment where Congress was within" }, { "docid": "14827639", "title": "", "text": "was not error. VI Young argues that his convictions under both section 922(g) and 924(c) violates the double jeopardy and due process clauses of the Constitution. “Where a legislature specifically authorizes cumulative punishments under two statutes, regardless of whether those two statutes proscribe the same conduct, the trial court may impose cumulative punishment in a single trial.” United States v. Springfield, 829 F.2d 860, 865 (9th Cir.1987) (quotation omitted); see also Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980) (“The Double Jeopardy Clause ... precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so.” (emphasis added). Section 924(c) expressly provides that its penalty shall be applied even where the underlying offense contains “an enhanced punishment if committed by the use of a deadly or dangerous weapon.” The imposition of a cumulative punishment under 18 U.S.C. § 922(g) and 18 U.S.C. § 924(c) is not barred by either the double jeopardy or due process clauses of the fifth amendment. See Springfield, 829 F.2d at 865. VII Finally, Young asserts that he was prejudiced by a clerical error in the government’s opposition to his motion and in the district court’s order denying the motion. This argument is patently frivolous and must be rejected. AFFIRMED. . In Eatinger, we held that the district court had erred by failing to treat a pro se inmate’s Rule 35(b) motion as one arising under section 2255, and accordingly, we remanded so that the court could evaluate the motion as a petition filed under section 2255. Eatinger, 902 F.2d at 1385. Here, however, a remand would be pointless because, unlike Eatinger, the district court rejected Young’s claims on the merits. . Young did not raise this issue in his Rule 35 motion before the district court, which would normally preclude review by this court. However, under Federal Rule of Criminal Procedure 52(b), this court may consider contentions which are \"plain errors or defects affecting substantial rights.” See United States v. Eastman, 758 F.2d 1315, 1318 (9th Cir.1985) (invoking Rule 52(b) in an appeal from the" }, { "docid": "7670088", "title": "", "text": "(7th Cir.2001). This Circuit has repeatedly upheld the constitutionality of the federal felon-in-possession statute, including two cases within the past year. See United States v. Lemons, 302 F.3d 769, 772-73 (7th Cir.2002); United States v. Mitchell, 299 F.3d 632, 633-35 (7th Cir.2002). Unlike the “school gun law” found in 18 U.S.C. § 922(q), which the Supreme Court struck down in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the statute under which Bass was prosecuted explicitly includes a jurisdictional element — i.e., the felon may not “possess in or affecting commerce” a firearm or ammunition. 18 U.S.C. § 922(g). In addition, the district court found the requisite nexus between Bass’s possession of the gun and interstate commerce — ie., that the gun had been manufactured in California and shipped to Illinois. (Appellee’s Br. at 11-12 (citing R. 41 at 2-3)). In light of the fact that the Seventh Circuit has repeatedly held that the jurisdictional element saves 18 U.S.C. § 922(g)(1) from the fate of the one struck down in Lopez, we decline Bass’s invitation to overrule our own precedent and affirm the district court’s holding that 18 U.S.C. § 922(g)(1) is constitutional. B. The Denial of the Motion to Suppress Bass’s claim that the district court erred in denying his motion to sup press the gun found in his car turns on the district judge’s determination as to balancing the credibility question between the police officer and the felon Bass. A district court’s findings of fact are reviewed for clear error. United States v. Jackson, 189 F.3d 502, 507 (7th Cir.1999). Reversal under this standard is appropriate only when the reviewing court is “left with the definite and firm conviction that a mistake has been made,” United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir.1994), such as a situation in which a district court credited “exceedingly improbable testimony.” United States v. Huerta, 239 F.3d 865, 872 (7th Cir.2001). As a general matter, a police officer’s decision to stop a car is reasonable if the officer has reason to believe a traffic violation" } ]

[ { "docid": "22438228", "title": "", "text": "be applied retroactively, 29 N. Y. 2d 583, 272 N. E. 2d 895 (1971). On remand, the Appellate Division thereupon affirmed the delinquency adjudication, 37 App. Div. 2d 822, 324 N. Y. S. 2d 934 (1971), and the Court of Appeals denied leave to appeal from that affirmance, 29 N. Y. 2d 489 (1972). We disagree with the holding of the Court of Appeals that Winship is not to be applied retroactively. “Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.” Williams v. United States, 401 U. S. 646, 653 (1971). See Adams v. Illinois, 405 U. S. 278, 280 (1972); Roberts v. Russell, 392 U. S. 293, 295 (1968). Winship expressly held that the reasonable-doubt standard “is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence — that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law’.... ‘Due process commands that no man shall lose his- liberty unless the Government has borne the burden of . . . convincing the factfinder of his guilt.’ To this end, the reasonable-doubt standard is indispensable, for it 'impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.’ ” 397 U. S., at 363-364. Plainly, then, the major purpose of the constitutional standard of proof beyond a reasonable doubt announced in Wins hip was to overcome an aspect of a criminal trial that substantially impairs the truth-finding function, and Winship is thus to be given complete retroactive effect. The motion for leave to .proceed in forma pauperis and the petition for" } ]

[ { "docid": "22621492", "title": "", "text": "he was serving at the time of the alleged assault. Thus, the effect of the five- to seven-year concurrent sentence on the assault charge was to increase his potential period of confinement by these 17 months, as opposed to the six-month increase envisaged by the District Court’s consecutive sentence. The Court of Appeals further instructed the District Court to await the ruling of this Court in Rice v. North Carolina, 434 F. 2d 297 (CA4), cert. granted, 401 U. S. 1008. Rice involved a challenge to the constitutionality of an enhanced penalty received after a criminal defendant had sought a trial de novo under North Carolina’s two-tiered misdemeanor adjudication system. This Court did not reach the merits of this issue in Rice, instead vacating and remanding to the Court of Appeals for consideration as to whether the case had become moot. 404 U. S. 244. Subsequently, in Colten v. Kentucky, 407 U. S. 104, we dealt with the merits of this issue, and held that the imposition of an increased sentence on trial de novo did not violate either the Due Process or the Double Jeopardy Clause. The District Court in the present case had the benefit of the Colten decision before issuing its opinion granting habeas corpus relief. This Court has never held that the States are constitutionally-required to establish avenues of appellate review of criminal convictions. Nonetheless, “it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.” Rinaldi v. Yeager, 384 U. S. 305, 310. See also Griffin v. Illinois, 351 U. S. 12; Douglas v. California, 372 U. S. 353; Lane v. Brown, 372 U. S. 477; Draper v. Washington, 372 U. S. 487; North Carolina v. Pearce, 395 U. S. 711, 724-725; Chaffin v. Stynchcombe, 412 U. S. 17, 24 n. 11. For a more exhaustive list of States employing similar two-tiered procedures, see Colten, supra, at 112 n. 4. Moreover, even putting to one side the potentiality of increased incarceration, conviction of a “felony” often entails more serious" }, { "docid": "22666131", "title": "", "text": "Court of Appeals was mistaken in so ruling. IV This Court held in North Carolina v. Pearce, 395 U. S. 711, 725, that the Due Process Clause of the Fourteenth Amendment “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” The same principle was later applied to prohibit a prosecutor from reindicting a convicted misdemeanant on a felony charge after the defendant had invoked an appellate remedy, since in this situation there was also a “realistic likelihood of Vindictiveness.’ ” Blackledge v. Perry, 417 U. S., at 27. In those cases the Court was dealing with the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction — a situation “very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.” Parker v. North Carolina, 397 U. S. 790, 809 (opinion of Brennan, J.). The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, see Colten v. Kentucky, 407 U. S. 104; Chaffin v. Stynchcombe, 412 U. S. 17, but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction. See Blackledge v. Perry, supra, at 26-28. To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, see North Carolina v. Pearce, supra, at 738 (opinion of Black, J.), and for an agent of the State to< pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is “patently unconstitutional.” Chaffin v. Stynchcombe, supra, at 32-33, n. 20. See United States v. Jackson, 390 U. S. 570. But in the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long" }, { "docid": "22787135", "title": "", "text": "of the fullest information possible concerning the defendant’s life and characteristics.” Allowing consideration of such a breadth of information ensures that the punishment will suit not merely the offense but the individual defendant. Ibid. In Pearce, supra, however, the Court recognized at least one limitation on the discretion of the sentencing authority where a sentence is increased after reconviction following a successful appeal. Two separate cases were before the Court in Pearce. In both cases, the defendants successfully appealed their original convictions and on retrial received greater sentences than they had received originally. The Court held that neither the Double Jeopardy Clause nor the Equal Protection Clause barred imposition of the greater sentences after the reconvictions of the defendants. However, it held that the Due Process Clause of the Fourteenth Amendment prevented increased sentences actually motivated by vindictive retaliation by the judge: “Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” 395 U. S., at 725. Because fear of such vindictiveness might chill a defendant’s decision to appeal or to attack his conviction collaterally, the Court went on to say that “due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” Ibid, (footnote omitted). To prevent actual vindictiveness from entering into a decision and allay any fear on the part of a defendant that an increased sentence is in fact the product of vindictiveness, the Court fashioned what in essence is a “prophylactic rule,” see Colten v. Kentucky, 407 U. S. 104, 116 (1972), that “when ever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” 395 U. S., at 726. This rule has been read to “[apply] a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” United States v. Goodwin, 457 U. S. 368, 374 (1982). The rationale for requiring" }, { "docid": "22565108", "title": "", "text": "can be justified only by “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” See 386 Mich. 84, 97, 191 N. W. 2d 375, 381 (1971). Petitioner contends that this holding was erroneous. Petition for Writ of Certiorari 5-6. The Court does not address this contention, nor shall I. Since Payne’s appeal was pending when Pearce was decided, I need not consider whether different considerations, such as the defendant’s failure to raise the issue in seeking review from this Court or to persuade us on the merits, might suffice under the Due Process Clause to justify different treatment of defendants whose sentences had become final. Mr. Justice Harlan, dissenting in Fay v. Noia, 372 U. S. 391, 475 (1963), suggested that the possibility of an enhanced sentence after a successful appeal, according to the Court, precluded the State from relying on a failure to appeal as an adequate state ground supporting the denial of relief under federal habeas corpus. On his interpretation, then, Fay anticipated the holding in Pearce. In holding various rulings retroactive, this Court has given only the most cursory nod to the three-pronged test. See, e. g., Roberts v. Russell, 392 U. S. 293 (1968); McConnell v. Rhay, 393 U. S. 2 (1968); Arsenault v. Massachusetts, 393 U. S. 5 (1968). Linkletter v. Walker, 381 U. S. 618 (1965), giving a limited retroactive effect to Mapp v. Ohio, 367 U. S. 643 (1961), is an anomaly at odds with the Court’s subsequent treatment of problems of retroactivity and can be explained only by the Court’s unfamiliarity with those problems when the case was decided. See also Johnson v. New Jersey, 384 U. S. 719 (1966). For example, the sentencing judge, had he considered the case as an initial matter, might have imposed a sentence shorter than that imposed at the first trial, but, out of vindictiveness, he might decide to reimpose the original sentence. The procedures outlined in Pearce cannot prevent this. I assume that the Court’s reliance on the continuing availability of the “foundational” right" }, { "docid": "22565081", "title": "", "text": "limitations Pearce established to guard against the possibility of vindictiveness in the resentenc-ing process. Those limitations, applicable “whenever a judge imposes a more severe sentence upon a defendant after a new trial,” 395 U. S., at 726, require that the sentencing judge’s reasons “must affirmatively appear,” and that those reasons “must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Ibid. The question here is whether these restrictions govern resentencing proceedings predating Pearce. The contours of the retroactivity inquiry have been clearly delineated in numerous decisions over the last decade. The test utilized repeatedly by this Court to ascertain whether “new” constitutional protections in the area of criminal procedure are to be applied retroactively calls for the consideration of three criteria: “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, 388 U. S. 293, 297 (1967). See also Linkletter v. Walker, 381 U. S. 618, 629, 636 (1965) ; Tehan v. Shott, 382 U. S. 406, 410-418 (1966); Johnson v. New Jersey, 384 U. S. 719, 726-727 (1966). The two purposes for the resentencing restrictions imposed by Pearce were to ensure (i) “that vindictiveness against a defendant for having successfully attacked his first conviction . . . [would] play no part in the sentence he receives after a new trial . . .” and (ii) that apprehension of such vindictiveness would not “deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction. . . 395 U. S., at 725; Colten v. Kentucky, 407 U. S. 104, 116 (1972). The latter purpose is not pertinent to this case, since respondent was not deterred from exercising his right to challenge his first conviction. But, in any event, we think it clear that this function of the new resentencing rules could be served only in futuro: nothing in Pearce" }, { "docid": "22787136", "title": "", "text": "S., at 725. Because fear of such vindictiveness might chill a defendant’s decision to appeal or to attack his conviction collaterally, the Court went on to say that “due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” Ibid, (footnote omitted). To prevent actual vindictiveness from entering into a decision and allay any fear on the part of a defendant that an increased sentence is in fact the product of vindictiveness, the Court fashioned what in essence is a “prophylactic rule,” see Colten v. Kentucky, 407 U. S. 104, 116 (1972), that “when ever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” 395 U. S., at 726. This rule has been read to “[apply] a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” United States v. Goodwin, 457 U. S. 368, 374 (1982). The rationale for requiring that “the factual data upon which the increased sentence is based” be made part of the record, of course, is that the “constitutional legitimacy,” of the enhanced sentence may thereby be readily assessed on appeal. Ibid. In Pearce, the State had offered “no evidence” whatever to justify respondent Rice’s increased sentence; it had not even “attempted to explain or justify” the greater penalty. 395 U. S., at 726. Similarly, the State had advanced no reason for Pearce’s sentence “beyond the naked power to impose it,” ibid. Finding the record barren of any evidence to rebut the presumption of vindictiveness and support the increased sentences in either of the two cases in Pearce, the Court affirmed the judgments granting relief. B In only one other circumstance has the Court identified a need to indulge a presumption of vindictiveness of the kind imposed in Pearce. In Blackledge v. Perry, 417 U. S. 21 (1974), Perry, while in state prison, was involved in a fight with a fellow inmate, and was charged with the misdemeanor offense of assault" }, { "docid": "22696839", "title": "", "text": "practical effect of which, if applied to the past as well as the future, would be acutely disruptive of state practice and institutions. In those cases the pressures of comity and the hesitancy drastically to nullify state actions lent special force to the demand that the decision should not be applied “retroactively.” In DeStefano v. Woods, 392 U. S. 631 (1968), for example, these circumstances were deemed to warrant only prospective application of the right to trial by jury in state prosecutions that was established in Duncan v. Louisiana, 391 U. S. 145 (1968), and Bloom, v. Illinois, 391 U. S. 194 (1968). The Court so held even though it thereby let stand convictions that had been rendered pursuant to a faulty reading of the Constitution. Even where considerations that favor “non-retroactivity” exist, however, a new constitutional rule will not always be “non-retroactively” applied. The Court has insisted that all persons, not just those selected by the chance of the calendar, receive the benefit of newly declared constitutional commands that are central to the reliability of the fact-finding process at trial and without which innocent persons may have been adjudged guilty. See, e. g., Roberts v. Russell, 392 U. S. 293 (1968) (holding retroactive Bruton v. United States, 391 U. S. 123 (1968)); McConnell v. Rhay, 393 U. S. 2 (1968) (holding retroactive Mempa v. Rhay, 389 U. S. 128 (1967)); Arsenault v. Massachusetts, 393 U. S. 5 (1968) (holding retroactive White v. Maryland, 373 U. S. 59 (1963)); Berger v. California, 393 U. S. 314 (1969) (holding retroactive Barber v. Page, 390 U. S. 719 (1968)); Gideon v. Wainwright, 372 U. S. 335 (1963); Griffin v. Illinois, 351 U. S. 12 (1956); Jackson v. Denno, 378 U. S. 368 (1964). In the present cases, the Court decides that the lawfulness of wiretaps and electronic eavesdropping occurring before December 18, 1967, will be controlled by Olmstead v. United States, supra, a decision that the Court agrees is a false and insupportable reading of the Constitution. The Court holds that the Fourth Amendment meant something quite different before Katz was decided" }, { "docid": "22565093", "title": "", "text": "(1970) (held retroactive in Ivan V. v. New York, 407 U. S. 203 (1972)); Barber v. Page, 390 U. S. 719 (1968) (held retroactive in Berger v. California, 393 U. S. 314 (1969)); Bruton v. United States, 391 U. S. 123 (1968) (held retroactive in Roberts v. Russell, 392 U. S. 293 (1968)); Gideon v. Wainwright, 372 U. S. 335 (1963). The most that may be said is that the Court in Pearce found that “increased sentences on reconviction are far from rare,” 395 U. S., at 725 n. 20, and that it was persuaded that vindictiveness played a role in a sufficient number of those cases to “warrant the imposition of a prophylactic rule.” Colten v. Kentucky, 407 U. S., at 116. See Johnson v. New Jersey, 384 U. S. 719 (1966). See also Stovall v. Denno, 388 U. S., at 299 (in pxe-Wade-Gilbert cases “it remains open to all persons to allege and prove . . . that the confrontation . . . infringed'his right to due process of law”); cf. Halliday v. United States, 394 U. S. 831, 833 (1969). Of course, it remains true that “retaliatory motivation” may be “difficult to prove in any individual case.” North Carolina v. Pearce, 395 U. S., at 725 n. 20. And, this is certainly one of the reasons why the Court in Pearce adopted prophylactic rules. Similar problems of proof prompted the decisions in Miranda and Wade, but such problems in themselves were not sufficient to warrant retrospective application. We reiterate here what the Court has repeatedly said in retro-activity cases: “[W]e do not disparage a constitutional guarantee in any manner by declining to apply it retroactively.” Johnson v. New Jersey, 384 U. S., at 728; cf. Linkletter v. Walker, 381 U. S. 618, 629 (1965). Compare Berger v. California, 393 U. S. 314 (1969), and Roberts v. Russell, 392 U. S. 293 (1968), with Adams v. Illinois, 405 U. S. 278 (1972), and Johnson v. New Jersey, supra, at 731. We need not disagree with Mr. Justice Marshall’s notation, post, at 66 n. 9, that the result in" }, { "docid": "22565083", "title": "", "text": "suggests that the Court contemplated that its decision might provide a ground for the untimely reopening of appeals by defendants who decided not to appeal prior to the date of decision in Pearce. See James v. Copinger, 441 F. 2d 23 (CA4 1971). The first-articulated purpose of the Pearce rules — to protect against the possibility that actual vindictiveness will infect a resentencing proceeding — deserves closer scrutiny. Unlike the purposes underlying many of the decisions heretofore accorded retrospective application, this purpose does not implicate the “ 'fair determination’ of . . . guilt or innocence.” Roberts v. Russell, 392 U. S. 293, 294 (1968) (emphasis supplied). It does, however, involve questions touching on the “integrity” of one aspect of the judicial process. McConnell v. Rhay, 393 U. S. 2, 3 (1968). The Pearce restrictions serve to ensure that resentencing decisions will not be based on improper considerations, such as a judge's unarticulated resentment at having been reversed on appeal, or his subjective institutional interest in discouraging meritless appeals. By eliminating the possibility that these factors might occasion enhanced sentences, the Pearce prophylactic rules assist in guaranteeing the propriety of the sentencing phase of the criminal process. In this protective role, Pearce is analogous to Miranda v. Arizona, 384 U. S. 436 (1966), in which the Court established rules to govern police practices during custodial interrogations in order to safeguard the rights of the accused and to assure the reliability of statements made during those interrogations. Thus, the prophylactic rules in Pearce and Miranda are similar in that each was designed to preserve the integrity of a phase of the criminal process. Because of this similarity, we find that Johnson v. New Jersey, 384 U. S. 719 (1966), which held Miranda non-retroactive, provides considerable guidance here. See also Jenkins v. Delaware, 395 U. S. 213 (1969). It is an inherent attribute of prophylactic constitutional rules, such as those established in Miranda and Pearce, that their retrospective application will occasion windfall benefits for some defendants who have suffered no constitutional deprivation. Miranda’s well-known warning requirements provided a protection “against the possibility" }, { "docid": "22384659", "title": "", "text": "“ (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, 388 U. S. 293, 297 (1967); see also Desist v. United States, 394 U. S. 244, 249 (1969). See, e. g., Arsenault v. Massachusetts, 393 U. S. 5 (1968) (giving retroactive effect to the right to counsel provided in White v. Maryland, 373 U. S. 59 (1963)); McConnell v. Rhay, 393 U. S. 2 (1968) (giving retroactive effect to the right to counsel provided in Mempa v. Rhay, 389 U. S. 128 (1967)); Berger v. California, 393 U. S. 314 (1969) (giving retroactive effect to Barber v. Page, 390 U. S. 719 (1968)); Roberts v. Russell, 392 U. S. 293 (1968) (giving retroactive effect to Bruton v. United States, 391 U. S. 123 (1968)); Jackson v. Denno, 378 U. S. 368 (1964); Gideon v. Wainwright, 372 U. S. 335 (1963); Douglas v. California, 372 U. S. 353 (1963); Griffin v. Illinois, 351 U. S. 12 (1956). The Fourth Amendment cases do not stand alone. We have reached similar results in holding nonretroactive new interpretations of the Fifth Amendment’s privilege against compelled self-incrimination, although some ramifications of the privilege have more connection with trustworthy results than does the exclusionary rule designed to enforce the Fourth Amendment. See Tehan v. Shott, 382 U. S. 406, 414-415, n. 12 (1966); Johnson v. New Jersey, 384 U. S. 719, 730 (1966); Desist v. United States, 394 U. S., at 249-250, n. 14; cf. Mackey v. United States, post, at 674-675. So, too, the right to jury trial secured by the Sixth Amendment “generally tends to prevent arbitrariness and repression,” DeStefano v. Woods, 392 U. S. 631, 633 (1968), and the holdings in United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), carry implications for the'reliability of identification testimony. But both Duncan v. Louisiana, 391 U. S. 145 (1968), obligating the" }, { "docid": "22565091", "title": "", "text": "granted, 395 U. S. 975 (1969)); Odom v. United States, 400 U. S. 23 (1970) (cert. granted, 399 U. S. 904 (1970)). This Court has consistently declined to reach out to resolve unsettled questions regarding the scope or meaning of decisions establishing “new” constitutional requirements in cases in which it holds any such decisions nonretroactive. See Stovall v. Denno, 388 U. S. 293 (1967) (holding United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), nonretroactive without resolving the question whether those cases were applicable to pre-formal accusation confrontations, a question later decided in Kirby v. Illinois, 406 U. S. 682 (1972)); DeStefano v. Woods, 392 U. S. 631 (1968) (holding Duncan v. Louisiana, 391 U. S. 145 (1968), and Bloom v. Illinois, 391 U. S. 194 (1968), nonretroactive and declining to decide whether a summary contempt proceeding that results in a one-year sentence is a “serious” offense requiring trial by jury, a question later decided in Baldwin v. New York, 399 U. S. 66 (1970)); Carcerano v. Gladden (a companion case with DeStefano, in which the Court declined to decide whether the right to jury trial contemplated by Duncan also required a unanimous verdict, a question later decided in Apodaca v. Oregon, 406 U. S. 404 (1972)); Elkanich v. United States (a companion case with Williams v. United States, 401 U. S. 646 (1971), holding Chimel v. California, 395 U. S. 752 (1969), nonretroactive and declining to decide whether the search was otherwise compatible with the Chimel limitations on searches incident to lawful arrests). Chaffin v. Stynchcombe, ante, at 25; Colten v. Kentucky, 407 U. S. 104, 116, 118 (1972). This is not to suggest, of course, that there may not be specific cases in which a convicted defendant might show that his initial waiver of his right to appeal was involuntary because caused by a reasonably based fear of actual vindictiveness on the part of a particular judge. Cf. North Carolina v. Pearce, 395 U. S., at 725 n. 20. See, e. g., In re Winship, 397 U. S. 358" }, { "docid": "22392255", "title": "", "text": "assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear” Id., at 725-726 (emphasis added). Beyond doubt, vindictiveness of a sentencing judge is the evil the Court sought to prevent rather than simply enlarged sentences after a new trial. The Pearce requirements thus do not apply in every case where a convicted defendant receives a higher sentence on retrial. Like other “judicially created means of effectuating the rights secured by the [Constitution],” Stone v. Powell, 428 U. S. 465, 482 (1976), we have restricted application of Pearce to areas where its “objectives are thought most efficaciously served,” 428 U. S., at 487. Accordingly, in each case, we look to the need, under the circumstances, to “guard against vindictiveness in the resentencing process.” Chaffin v. Stynchcombe, 412 U. S. 17, 25 (1973) (emphasis omitted). For example, in Moon v. Maryland, 398 U. S. 319 (1970), we held that Pearce did not apply when the defendant conceded and it was clear that vindictiveness had played no part in the enlarged sentence. In Colten v. Kentucky, 407 U. S. 104 (1972), we saw no need for applying the presumption when the second court in a two-tier trial system imposed a longer sentence. In Chaffin, supra, we held Pearce not applicable where a jury imposed the increased sentence on retrial. Where the prophylactic rule of Pearce does not apply, the defendant may still obtain relief if he can show actual vindictiveness upon resentencing. Wasman v. United States, 468 U. S. 559, 569 (1984). The facts of this case provide no basis for a presumption of vindictiveness. In contrast to Pearce, McCullough’s second trial came about because the trial judge herself concluded that the prosecutor’s misconduct required it. Granting McCullough’s motion for a new trial hardly suggests any vindictiveness on the part of the judge towards him. “[U]n-like the judge who has been reversed,” the trial judge here had “no motivation to engage in self-vindication.” Chaffin, 412 U. S., at" }, { "docid": "22565094", "title": "", "text": "United States, 394 U. S. 831, 833 (1969). Of course, it remains true that “retaliatory motivation” may be “difficult to prove in any individual case.” North Carolina v. Pearce, 395 U. S., at 725 n. 20. And, this is certainly one of the reasons why the Court in Pearce adopted prophylactic rules. Similar problems of proof prompted the decisions in Miranda and Wade, but such problems in themselves were not sufficient to warrant retrospective application. We reiterate here what the Court has repeatedly said in retro-activity cases: “[W]e do not disparage a constitutional guarantee in any manner by declining to apply it retroactively.” Johnson v. New Jersey, 384 U. S., at 728; cf. Linkletter v. Walker, 381 U. S. 618, 629 (1965). Compare Berger v. California, 393 U. S. 314 (1969), and Roberts v. Russell, 392 U. S. 293 (1968), with Adams v. Illinois, 405 U. S. 278 (1972), and Johnson v. New Jersey, supra, at 731. We need not disagree with Mr. Justice Marshall’s notation, post, at 66 n. 9, that the result in Pearce was foreshadowed, i. e., that higher sentences on retrial were being questioned. Our focus here, however, is on the prophylactic measure adopted to achieve that result. As to this, we do not think there is any serious question that neither the recordation requirement nor the limitations on matters to be considered were so clearly forecast as to render a contrary state reliance unjustifiable. See Note, Constitutional Law: Increased Sentence and Denial of Credit on Retrial Sustained under Traditional Waiver Theory, 1965 Duke L. J. 395, 399 n. 25 (informal survey of North Carolina courts showed that six of 50 reconvicted defendants received higher sentences). Thus, the retroactivity of Pearce would present difficulties not encountered in two of the Court’s recent decisions holding retroactive cases involving resentencing: Furman v. Georgia, 408 U. S. 238 (1972) (the “death penalty” case); Robinson v. Neil, 409 U. S. 505 (1973) (holding Waller v. Florida, 397 U. S. 387 (1970) retroactive). In both cases, “[t]hat which was constitutionally invalid could be isolated and excised without requiring the State to" }, { "docid": "22565092", "title": "", "text": "v. Gladden (a companion case with DeStefano, in which the Court declined to decide whether the right to jury trial contemplated by Duncan also required a unanimous verdict, a question later decided in Apodaca v. Oregon, 406 U. S. 404 (1972)); Elkanich v. United States (a companion case with Williams v. United States, 401 U. S. 646 (1971), holding Chimel v. California, 395 U. S. 752 (1969), nonretroactive and declining to decide whether the search was otherwise compatible with the Chimel limitations on searches incident to lawful arrests). Chaffin v. Stynchcombe, ante, at 25; Colten v. Kentucky, 407 U. S. 104, 116, 118 (1972). This is not to suggest, of course, that there may not be specific cases in which a convicted defendant might show that his initial waiver of his right to appeal was involuntary because caused by a reasonably based fear of actual vindictiveness on the part of a particular judge. Cf. North Carolina v. Pearce, 395 U. S., at 725 n. 20. See, e. g., In re Winship, 397 U. S. 358 (1970) (held retroactive in Ivan V. v. New York, 407 U. S. 203 (1972)); Barber v. Page, 390 U. S. 719 (1968) (held retroactive in Berger v. California, 393 U. S. 314 (1969)); Bruton v. United States, 391 U. S. 123 (1968) (held retroactive in Roberts v. Russell, 392 U. S. 293 (1968)); Gideon v. Wainwright, 372 U. S. 335 (1963). The most that may be said is that the Court in Pearce found that “increased sentences on reconviction are far from rare,” 395 U. S., at 725 n. 20, and that it was persuaded that vindictiveness played a role in a sufficient number of those cases to “warrant the imposition of a prophylactic rule.” Colten v. Kentucky, 407 U. S., at 116. See Johnson v. New Jersey, 384 U. S. 719 (1966). See also Stovall v. Denno, 388 U. S., at 299 (in pxe-Wade-Gilbert cases “it remains open to all persons to allege and prove . . . that the confrontation . . . infringed'his right to due process of law”); cf. Halliday v." }, { "docid": "22787141", "title": "", "text": "only that the Kentucky trial de novo system “as such” was not unconstitutional. Id., at 119. Similarly, in Chaffin v. Stynchcombe, 412 U. S. 17 (1973), we rejected the need for the prophylactic Pearce presumption because we perceived as “de minimis” the possibility that an increased sentence by a jury upon reconviction after a new trial would be motivated by vindictiveness. Not only was the second jury in Chaffin unaware of the prior conviction, but in contrast to the judge and the prosecutor in Pearce and Blackledge, it was thought unlikely that a jury would consider itself to have a “personal stake” in a prior conviction or a “motivation to engage in self-vindication.” 412 U. S., at 27. We emphasized in Chaffin that “Pearce was not written with a view to protecting against the mere possibility that, once the slate is wiped clean and the prosecution begins anew, a fresh sentence may be higher for some valid reason associated with the need for flexibility and discretion in the sentencing process.” Id., at 25. Pearce, we explained, was only “premised on the apparent need to guard against vindictiveness in the resentencing process.” 412 U. S., at 25 (emphasis in original). Consequently, as in Colten, we noted that jury sentencing used as a means of “punishing or penalizing the assertion of protected rights” might violate due process. 412 U. S., at 32, n. 20. In Bordenkircher v. Hayes, 434 U. S. 357 (1978), we held that due process is not implicated when a prosecutor threatens to seek conviction on a greater offense if the defendant does not plead guilty and in fact does so when the defendant proceeds to trial. We declined to characterize this conduct as “punishment or retaliation” offensive to due process, id., at 363, instead noting that such was a mere byproduct of the “‘give-and-take negotiation common in plea bargaining.”’ Id., at 362 (quoting Parker v. North Carolina, 397 U. S. 790, 809 (1970) (Brennan, J., dissenting). As in Colten and Chaffin, we did not rule out, however, the possibility that a defendant could establish a due process violation" }, { "docid": "22565109", "title": "", "text": "anticipated the holding in Pearce. In holding various rulings retroactive, this Court has given only the most cursory nod to the three-pronged test. See, e. g., Roberts v. Russell, 392 U. S. 293 (1968); McConnell v. Rhay, 393 U. S. 2 (1968); Arsenault v. Massachusetts, 393 U. S. 5 (1968). Linkletter v. Walker, 381 U. S. 618 (1965), giving a limited retroactive effect to Mapp v. Ohio, 367 U. S. 643 (1961), is an anomaly at odds with the Court’s subsequent treatment of problems of retroactivity and can be explained only by the Court’s unfamiliarity with those problems when the case was decided. See also Johnson v. New Jersey, 384 U. S. 719 (1966). For example, the sentencing judge, had he considered the case as an initial matter, might have imposed a sentence shorter than that imposed at the first trial, but, out of vindictiveness, he might decide to reimpose the original sentence. The procedures outlined in Pearce cannot prevent this. I assume that the Court’s reliance on the continuing availability of the “foundational” right means that an offender who shows that vindictiveness played a part in his resentencing is entitled to relief. I would simply shift the burden of proof to the State, which has better access to the relevant facts. State courts, closer to the problems of administering the rule I suggest, have widely thought that those burdens are not substantial. See, e. g., Stonom v. Wainwright, 235 So. 2d 545 (Fla. App. 1970); People v. Baze, 43 Ill. 2d 298, 253 N. E. 2d 392 (1969); State v. Pilcher, 171 N. W. 2d 251 (Iowa 1969); Hord v. Commonwealth, 450 S. W. 2d 530 (Ky. 1970); State v. Rentschler, 444 S. W. 2d 453 (Mo. 1969); Commonwealth v. Allen, 443 Pa. 96, 277 A. 2d 803 (1971); Denny v. State, 47 Wis. 2d 541, 178 N. W. 2d 38 (1970). The Court’s conclusion that Pearce was not foreshadowed by decisions in this Court or by a trend of lower court decisions is somewhat misleading. This Court’s decision in Green v. United States, 355 U. S. 184 (1957)," }, { "docid": "22696840", "title": "", "text": "of the fact-finding process at trial and without which innocent persons may have been adjudged guilty. See, e. g., Roberts v. Russell, 392 U. S. 293 (1968) (holding retroactive Bruton v. United States, 391 U. S. 123 (1968)); McConnell v. Rhay, 393 U. S. 2 (1968) (holding retroactive Mempa v. Rhay, 389 U. S. 128 (1967)); Arsenault v. Massachusetts, 393 U. S. 5 (1968) (holding retroactive White v. Maryland, 373 U. S. 59 (1963)); Berger v. California, 393 U. S. 314 (1969) (holding retroactive Barber v. Page, 390 U. S. 719 (1968)); Gideon v. Wainwright, 372 U. S. 335 (1963); Griffin v. Illinois, 351 U. S. 12 (1956); Jackson v. Denno, 378 U. S. 368 (1964). In the present cases, the Court decides that the lawfulness of wiretaps and electronic eavesdropping occurring before December 18, 1967, will be controlled by Olmstead v. United States, supra, a decision that the Court agrees is a false and insupportable reading of the Constitution. The Court holds that the Fourth Amendment meant something quite different before Katz was decided than it means afterwards; that Katz and persons whose rights are violated after the date of that decision may have the benefit of the true meaning of the constitutional provision, but that those who were victims before Katz may not. If such a distinction in the application of a substantive constitutional principle can ever be justified, it can be only in the most compelling circumstances. Such circumstances might possibly exist if the newly announced principle related only to the States, in that it extended to the States a principle heretofore deemed to apply only to the Federal Government, or if “retroactive” application would place an extreme burden on the administration of justice; if the new ruling were wholly unanticipated in the decisions of the Court; and if the new rule did not directly and clearly affect the fairness of the trial. Cf. DeStefano v. Woods, supra; Johnson v. New Jersey, 384 U. S. 719 (1966); Linkletter v. Walker, supra. But there is no justification for refusing “retroactive” application to a constitutional principle merely because of" }, { "docid": "22565082", "title": "", "text": "standards.” Stovall v. Denno, 388 U. S. 293, 297 (1967). See also Linkletter v. Walker, 381 U. S. 618, 629, 636 (1965) ; Tehan v. Shott, 382 U. S. 406, 410-418 (1966); Johnson v. New Jersey, 384 U. S. 719, 726-727 (1966). The two purposes for the resentencing restrictions imposed by Pearce were to ensure (i) “that vindictiveness against a defendant for having successfully attacked his first conviction . . . [would] play no part in the sentence he receives after a new trial . . .” and (ii) that apprehension of such vindictiveness would not “deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction. . . 395 U. S., at 725; Colten v. Kentucky, 407 U. S. 104, 116 (1972). The latter purpose is not pertinent to this case, since respondent was not deterred from exercising his right to challenge his first conviction. But, in any event, we think it clear that this function of the new resentencing rules could be served only in futuro: nothing in Pearce suggests that the Court contemplated that its decision might provide a ground for the untimely reopening of appeals by defendants who decided not to appeal prior to the date of decision in Pearce. See James v. Copinger, 441 F. 2d 23 (CA4 1971). The first-articulated purpose of the Pearce rules — to protect against the possibility that actual vindictiveness will infect a resentencing proceeding — deserves closer scrutiny. Unlike the purposes underlying many of the decisions heretofore accorded retrospective application, this purpose does not implicate the “ 'fair determination’ of . . . guilt or innocence.” Roberts v. Russell, 392 U. S. 293, 294 (1968) (emphasis supplied). It does, however, involve questions touching on the “integrity” of one aspect of the judicial process. McConnell v. Rhay, 393 U. S. 2, 3 (1968). The Pearce restrictions serve to ensure that resentencing decisions will not be based on improper considerations, such as a judge's unarticulated resentment at having been reversed on appeal, or his subjective institutional interest in discouraging meritless appeals. By eliminating the possibility that these" }, { "docid": "22621497", "title": "", "text": "I As the Court notes, in addition to his claim based on Pearce, respondent contends that his felony indictment in the Superior Court violated his rights under the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969). Presumably because we have earlier held that “the jeopardy incident to” a trial does “not extend to an offense beyond [the trial court’s] jurisdiction,” Diaz v. United States, 223 U. S. 442, 449 (1912), the Court rests its decision instead on the Fourteenth Amendment due process doctrine of Pearce. In so doing, I think the Court too readily equates the role of the prosecutor, who is a natural adversary of the defendant and who, we observed in Chaffin v. Stynchcombe, 412 U. S. 17, 27 n. 13 (1973), “often request [s] more than [he] can reasonably expect to get,” with that of the sentencing judge in Pearce. I also think the Court passes too lightly over the reasoning of Colten v. Kentucky, 407 U. S. 104 (1972), in which we held that imposition of the prophylactic rule of Pearce was not necessary in Kentucky’s two-tier system for de novo appeals from justice court convictions, even though the judge at retrial might impose a more severe sentence than had been imposed by the justice court after the original trial. The concurring opinion in Pearce, 395 U. S. 711, 726, took the position that the imposition of a penalty after retrial which exceeded the penalty imposed after the first trial violated the guarantee against double jeopardy. But the opinion of the Court, relying on cases such as United States v. Ball, 163 U. S. 662 (1896), and Stroud v. United States, 251 U. S. 15 (1919), specifically rejected such an approach to the case. The Court went on to hold “that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction.” 395 U. S., at 723. The Court concluded by holding that due process “requires that vindictiveness against a" }, { "docid": "22384658", "title": "", "text": "post, p. 675 (Harlan, J., concurring in judgments and dissenting) . Compare Mishkin, The Supreme Court 1964 Term-Foreword: The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56 (1965), with Schwartz, Retroactivity, Reliability, and Due Process: A Reply to Professor Mishkin, 33 U. Chi. L. Rev. 719 (1966). In rejecting the distinction between cases pending on direct review and those on collateral attack, the Court in Johnson v. New Jersey, 384 U. S. 719, 732 (1966), stated: “Our holdings in Linkletter and Tehan were necessarily limited to convictions which had become final by the time Mapp and Griffin were rendered. Decisions prior to Linkletter and Tehan had already established without discussion that Mapp and Griffin applied to cases still on direct appeal at the time they were announced.” In our more recent opinions dealing with the retroactive sweep of our decisions in the field of criminal procedure, the approach mandated by Linkletter has come to be summarized in terms of a threefold analysis directed at discovering: “ (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, 388 U. S. 293, 297 (1967); see also Desist v. United States, 394 U. S. 244, 249 (1969). See, e. g., Arsenault v. Massachusetts, 393 U. S. 5 (1968) (giving retroactive effect to the right to counsel provided in White v. Maryland, 373 U. S. 59 (1963)); McConnell v. Rhay, 393 U. S. 2 (1968) (giving retroactive effect to the right to counsel provided in Mempa v. Rhay, 389 U. S. 128 (1967)); Berger v. California, 393 U. S. 314 (1969) (giving retroactive effect to Barber v. Page, 390 U. S. 719 (1968)); Roberts v. Russell, 392 U. S. 293 (1968) (giving retroactive effect to Bruton v. United States, 391 U. S. 123 (1968)); Jackson v. Denno, 378 U. S. 368 (1964); Gideon v. Wainwright, 372 U. S. 335 (1963);" } ]

[ { "docid": "15096140", "title": "", "text": "is defined in § 1956(c)(3): the term “transaction” includes a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition.... Finally, the term “Monetary instruments” is defined in § 1956(c)(5) and includes “currency of the United States.” We read these provisions to mean that giving drug proceeds to a courier is both a transfer and a delivery and involves the movement of funds by means of the courier, which satisfies the definition of “financial transaction” found in § 1956(e)(4)(A)(i). Further, delivering funds to a courier involves monetary instruments, namely the currency, which satisfies the definition found in § 1956(c)(4)(A)(ii). Thus, except for our decisions in Samour and Oleson, the allegations against defendant here state a violation of the statute — defendant, knowing that the money was the proceeds of marijuana trafficking, engaged in a financial transaction with the intent to promote the carrying on of further drag activity. We turn then to our decisions in Samour and Oleson. B. The District Court dismissed the money laundering counts in the indictment because it found itself bound by this court’s opinions in United States v. Samour, 9 F.3d 531 (6th Cir.1993) and United States v. Oleson, 44 F.3d 381 (6th Cir.1995). Samour involved a defendant (Samour) who was convicted of money laundering under § 1956(a)(l)(A)(i) and (B)(i). On four separate occasions, Samour transferred drag proceeds to a courier who, in turn, used the proceeds to purchase marijuana and settle outstanding drug debts. Samour, 9 F.3d at 533-34. A panel of this court examined § 1956(a)(l)(A)(i) and the statutory definition of financial transaction in § 1956(e)(4) and concluded that “merely transporting cash does not meet the definition of a ‘financial transaction’ for purposes of the money laundering statute.” Id. at 536. Applying this rule to the facts of the case as it understood them, a divided panel decided that Samour’s activities constituted mere transportation and hence reversed his money laundering conviction. Id. In Oleson a jury convicted the defendant of money laundering under § 1956(a)(l)(A)(i) for giving a courier over $100,000 in drug proceeds for the purpose of facilitating continued marijuana trafficking. Oleson," } ]

[ { "docid": "23350916", "title": "", "text": "for money laundering in violation of 18 U.S.C. § 1956(a). The federal money laundering statute under which Baez was convicted, 18 U.S.C. § 1956(a)(l)(A)(i), provides as follows: (a)(1) Whoever, knowing that the property involved in a financial transaction represents proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity— (A)(i) with the intent to promote the carrying on of specified unlawful activity; ... shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both. 18 U.S.C. § 1956(a)(l)(A)(i) (emphasis added). The statute is clear that money laundering must involve a “financial transaction.” The factual basis for Baez’s plea as set forth in the agreement states that Baez violated the money laundering statute when he sent another individual from New Jersey to Ohio for the purpose of picking up approximately $349,417.00 in drug trafficking proceeds and delivering the money to a place outside the state of Ohio. This factual scenario is similar to the defendant’s conduct in United States v. Samour, 9 F.3d 531 (6th Cir.1993), in which Samour gave cash to a money courier in Ohio, which the courier then transported to Arizona to pay off drug debts and to purchase drugs. Over a dissent by Judge Kennedy, the panel ruled to reverse Samour’s money laundering conviction, holding that “merely transporting cash does not meet the definition of financial transaction” for purposes of 18 U.S.C. § 1956(a)(1). Id. at 536. In January, 1995, the court reached a similar conclusion in United States v. Oleson, 44 F.3d 381 (6th Cir.1995), relying on Samour to reverse Oleson’s conviction for money laundering on the grounds that defendant’s mere transportation or delivery of cash was not a “financial transaction” under to 18 U.S.C. § 1956. Oleson, 44 F.3d at 384. Although these decisions would have compelled this court to conclude that Baez’s acts of arranging for the pick-up or delivery of drug proceeds by" }, { "docid": "23507694", "title": "", "text": "foreign commerce (i) involving the movement of funds by wire or other means or (ii) involving one or more monetary instruments.... ” 18 U.S.C. § 1956(c)(4)(A). “By definition, then, a ‘financial transaction’ must, at the very least, be a ‘transaction,’ i.e., ‘a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition’ or some action involving a financial institution or its facilities.” United States v. Puig-Infante, 19 F.3d 929, 938 (5th Cir.1994) (citing 18 U.S.C. § 1956(c)(3)). When some “transaction” that does not involve a financial institution or its facilities is charged, the government must show that a “disposition” took place. A “disposition” has been defined by this Court to mean “ ‘a placing elsewhere, a giving over to the care or possession of another.’ ” Id. (quoting Webster’s Third New International Dictionary, 654 (1961)). We also note that currency does not become proceeds of drug trafficking until a drug sale has been completed. See United States v. Gaytan, 74 F.3d 545, 555-56 (5th Cir.), cert. denied, — U.S. -, 117 S.Ct. 77, 136 L.Ed.2d 36 (1996). In this case, the government argues that “the collection of more than $11 million in less than a six week period of time, Oziel’s presence from Mexico, and the presence of $5 million in drag proceeds support the inference of a disposition of the drug proceeds handled by Garcia and Garza and the inference of intent to commit money laundering....” Notwithstanding this inference-filled expose’, currency found by officers in connection with a drug trafficking offense, by itself, is insufficient evidence to support a money laundering conviction. See Puig-Infante, 19 F.3d at 938; United States v. Ramirez, 954 F.2d 1035, 1039-40 (5th Cir.1992). The government presented evidence that $2 million in proceeds had been collected and forwarded to Colombian producers and a stockpile of $5 million in cash was found at Inoeencio’s residence. However, no evidence was presented that Garza or Garcia handled these proceeds or were, in any way, involved in the “disposition” of these funds. While the jury may draw reasonable inferences from the evidence presented, nothing reasonable could be inferred from" }, { "docid": "5925866", "title": "", "text": "that: (1) the evidence was insufficient to support their money laundering convictions; and (2) the district court erred by giving Eleventh Circuit Criminal Pattern Jury Instruction 12.2 on entrapment rather than Pattern Jury Instruction 12.1. Mauricio also contends that the Government failed to make a sufficient showing of a predisposition to commit money laundering, thus requiring a finding of entrapment as a matter of law. These three arguments are meritless, and we reject them without discussion. See 11th Cir. R. 36-1. Guillermo also raises the following issue: Whether the district court should have dismissed his money-laundering convictions because he was acquitted of the failure-to-file charges, which, he contends, are lesser-included offenses of money laundering. The Government, on cross-appeal, questions the legality of the district court’s downward departure. We address each of these issues in turn. III.STANDARDS OF REVIEW Since Guillermo did not raise the lesser-included-offense issue in district court, we review it for plain error. United States v. Thayer, 204 F.3d 1352, 1358 (11th Cir.2000). We review the district court’s downward departure for an abuse of discretion. United States v. Pickering, 178 F.3d 1168, 1171 (11th Cir.1999). IV.DISCUSSION A. GUILLERMO’S CONVICTION Guillermo was convicted of money laundering in violation of 18 U.S.C. § 1956(a)(3)(C), which requires the Government to prove the following: (1) that the defendant conducted or attempted to conduct a financial transaction, (2) with the intent to avoid a transaction reporting requirement, and (3) that the property involved in the transaction was represented by a law enforcement officer to be the proceeds of narcotics trafficking. 18 U.S.C. § 1956(a)(3)(C), (c)(7)(B)(i) (2000); United States v. Nelson, 66 F.3d 1036, 1040 (9th Cir.1995); United States v. Breque, 964 F.2d 381, 386-87 (5th Cir.1992). On the other hand, Guillermo was acquitted of failing to file Form 8300 in violation of 26 U.S.C. §§ 60501(f)(1)(A) and (C). Guillermo argues that, because intent to avoid a reporting requirement is an element of money laundering, and because failing to file Form 8300 is a means of avoiding a reporting requirement, then failing to file is a lesser-included offense of money laundering. Therefore, according to" }, { "docid": "23359017", "title": "", "text": "cooperating with the DEA Carlos Rodriguez testified that he arranged shipments of cocaine to George Paulicastro’s warehouse in New Jersey. A special agent for the DEA testified that, when the load of cocaine reached Paulicastro’s warehouse on April 3, 1993, all but 10 kilograms of it was replaced with fake cocaine. Carlos Rodriguez testified that he was arrested in connection with the delivery. On April 9, 1993, Paulicastro delivered the cocaine in a rental truck to Francisco Segura. Segura was later arrested, and at that time he had in his possession a telephone book containing a code that Segura testified was given to him by Medrano for use in deciphering encoded telephone numbers given to Segura by group members. Based upon this evidence, the jury could reasonably conclude that the drug offense described in count 28 was committed by Garcia Abrego’s coconspirators in furtherance of the conspiracy. E. Sufficiency of the Evidence Supporting the Substantive Money Laundering Convictions Garcia Abrego elaims that insufficient evidence exists to support his convictions of money laundering in violation of 18 U.S.C. § 1956(a)(l)(A)(i) and (a)(2)(A). We conclude, however, that the government adduced evidence sufficient to support each count of conviction. 1. Section 1956(a)(l)(A)(i) Counts 2, 11-13, and 16 charged Garcia Abrego with laundering money in violation of 18 U.S.C. § 1956(a)(l)(A)(i), which criminalizes engaging in a financial transaction involving the proceeds of an unlawful activity with the intent to promote a specified unlawful activity. For purposes of § 1956(a)(1), a transaction is ‘“a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition’ or some action involving a financial institution or its facilities.” United States v. Puig-Infante, 19 F.3d 929, 938 (5th Cir.1994) (quoting 18 U.S.C. § 1956(c)(3)). “ ‘Disposition’ most commonly means ‘a placing elsewhere, a giving over to the care or possession of another.’ ” Id. (quoting Webster’s Third New International Dictionary 654 (Philip Babcock Grove ed.1961)). Garcia Abrego contends that the evidence adduced at trial was insufficient to support his convictions for counts 2, 11-13, and 16 because (1) the government failed to prove a transaction involving the funds at issue" }, { "docid": "10434937", "title": "", "text": "of concealment. Thus, I would affirm the conviction on this count. In summary, Dobbs’ eventual use of the funds may have been “open and notorious,” majority op. at 5668, but that does not answer the question of whether the manner in which he moved the funds to his accounts demonstrated an intent to conceal the source of those funds — the improper sale of cattle. I am simply not convinced that the Government did not prove its case on these money laundering charges. Accordingly, I respectfully dissent from the reversal of Dobbs’ money laundering convictions. . 14 F.3d 1469 (10th Cir.1994). . 929 F.2d 1466 (10th Cir.), cert. denied, 502 U.S. 846, 112 S.Ct. 143, 116 L.Ed.2d 109 (1991). . The section states as follows: Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity ... knowing that the transactions is designed in whole or in part ... to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds.... 18 U.S.C. § 1956(a)(1) (1988) (emphasis added). .Accord United States v. Manarite, 44 F.3d 1407 (9th Cir.) (rejecting argument that money laundering statute required intent to conceal identity and holding that attempts to conceal source of proceeds satisfied intent element), cert. denied, — U.S. —, 115 S.Ct. 2610, 132 L.Ed.2d 854 (1995); United States v. Dimeck, 24 F.3d 1239, 1246 (10th Cir.1994) (explaining that purpose of statute is to focus on “characteristics which, when concealed or obliterated, allow illegal proceeds to be passed into commerce as legitimate proceeds more easily”); United States v. Alford, 999 F.2d 818, 824 (5th Cir.1993) (holding that intent element is shown if transactions were for \"the purpose of disguising the nature, location and control of the proceeds”); Hollen-back v. United States, 987 F.2d 1272, 1278 (7th Cir. 1993) (stating that statute covers more than intent to hide identity). .The court clarified further: To find that the money laundering statute is aimed" }, { "docid": "22169319", "title": "", "text": "unlawful activity.” This statute does not require that the defendant knew that the offense from which the criminally derived property was derived was specified unlawful activity. 18 U.S.C. § 1957(c). Section 1957(f)(2) defines criminally derived property as \"any property constituting, or derived from, proceeds obtained from a criminal offense.” Stating that the legislative history applicable to section 1956 also applies to section 1957, the Ninth Circuit in Savage concluded that \"criminally derived property” under section 1957 is equivalent to \"proceeds” under section 1956. Savage, 67 F.3d at 1442. . A disposition means \" 'a placing elsewhere, a giving over to the care or possession of another.’ ” United States v. Garcia Abrego, 141 F.3d 142, 161 (5th Cir.1998) (citations omitted). . In United States v. Cavalier, 17 F.3d 90, 91 (5th Cir.1994), the defendant had possession of a van that was insured by Allstate Insurance Corporation (\"Allstate”) and financed by General Motors Acceptance Corporation (\"GMAC”). The defendant shipped the vehicle to Honduras where it was sold, and then he reported to Allstate that it had been stolen. Id. Based on the mailed, false theft report, Allstate paid GMAC to satisfy the lien on the van. Id. The indictment charged the defendant, among other offenses, with causing the conducting of a financial transaction involving the proceeds of mail fraud, in violation of 18 U.S.C. sections 1956(a)(l)(A)(i); 2. Id. On appeal of his guilty plea, the defendant argued that he did not cause a financial transaction between Allstate and GMAC to be conducted because he had no dominion or control over Allstate. Id. at 92. The Fifth Circuit found that the mailing of the false theft claim to Allstate caused Allstate to send a check to GMAC, thereby extinguishing GMAC’s lien. Id. The court \"therefore rejected] the argument that [the defendant] did not cause to be conducted a financial transaction between Allstate and GMAC.” Id. . The following is an excerpt from the government's direct examination of Mrs. Bell: Q And then why wouldn’t you write a check out of your Recount to give it to your brother instead of giving him" }, { "docid": "15029830", "title": "", "text": "Gaytan, 74 F.3d 545 (5th Cir.1996) and United States v. Dimeck, 24 F.3d 1239 (10th Cir.1994). In Gaytan, Defendant Rene Gandara-Granillo and Jesse Macias-Munoz were leaders of a large cocaine operation based in El Paso, Texas. Alfred Gaytan was a lower level operative who participated in several meetings involving drug transactions and on at least one occasion stored and counted large quantities of cocaine at his residence. Macias and Gandara challenged their convictions for money laundering under 18 U.S.C. § 1956(a)(l)(A)(i) which requires proof that a defendant conducted or attempted to conduct a financial transaction which he knew involved proceeds from unlawful activity with the intent to promote or further unlawful activity. Macias and Gandara argued that there was insufficient evidence that they conducted a financial transaction, relying on United States v. Puig-Infante, 19 F.3d 929, 938 (5th Cir.1994). In Puig-Infante, this court defined when a transaction occurs (which is not an issue in this case), but also observed that funds do not become the proceeds of drug trafficking until a sale of drugs is completed. Hence, a transaction to pay for illegal drugs is not money laundering, because the funds involved are not proceeds of an unlawful activity when the transaction occurs, but become so only after the transaction is completed. Gaytan, 74 F.3d at 555-56, discussing Puig-Infante. This court reversed Macias’s and Gandara’s convictions on two counts. Under both counts, a third party owed Macias money for a drug debt. Macias sent others to retrieve it. The money did not become drug proceeds until received and there was no evidence that the courier obtained the money through illegal activity. Convictions on other counts were affirmed after this court rejected the defendants’ contentions that no transaction took place. In United States v. Dimeck, 24 F.3d 1239 (10th Cir.1994), the defendant argued that “mere delivery of alleged drug-money by one courier to a second courier, who was to deliver the money to the seller of the drugs, does not constitute money laundering under 1956(a)(l)(B)(i).” Id. at 1241. The facts of the case involved physical delivery of cash by Dimeck (the" }, { "docid": "6724554", "title": "", "text": "agreed to cooperate with government investigators. Their cooperation led to Reed’s indictment on one count of conspiracy to distribute marijuana, along with thirty-one other co-defendants who were members of Sumpter’s network, as well as two counts of money laundering and one count of conspiracy to commit money laundering. See Reed II, 167 F.3d at 987. After the district court refused to grant a proposed jury instruction stating that the act of delivering cash to a drug courier constituted a “financial transaction” for purposes of the money laundering statute, 18 U.S.C. § 1956, the three money laundering counts in the indictment against Reed were dismissed. The government then filed an interlocutory appeal and the case was heard by this court en banc. In United States v. Reed, 77 F.3d 139, 142 (6th Cir.) (en banc) (Reed I), cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996), we overruled two prior circuit cases and held that the delivery or transfer of cash to a drug courier, as alleged in the indictment, constituted a “financial transaction” under 18 U.S.C. § 1956(c)(4)(A)(i). Thereafter, Reed was re-indicted on four counts and tried in a two-month trial from September to November 1996. In December 1996, the jury found Reed guilty of conspiracy to launder money; the jury acquitted her of the drug conspiracy and one of the money laundering counts, and was unable to reach a verdict on the other money laundering count. J.A. at 62. At sentencing, Judge Horace W. Gilmore relied upon the Presentence Report prepared by the probation office and calculated Reed’s total offense level to be 32. The district court arrived at this number by starting with a base offense level of 23 pursuant to U.S. SENTENCING Guidelines Manual (“U.S.S.G.”) § 2S1.1 (1995), the guideline applicable to convictions under 18 U.S.C. § 1956. The district court then added three levels, pursuant to § 2S1.1(b)(1), applicable when the defendant knows the funds are the proceeds of unlawful drug trafficking activity, two levels under § 2S1.1(b)(2) because the laundered funds exceeded $200,000, two levels under § 3B1.3 for abuse of a" }, { "docid": "457457", "title": "", "text": "laundering statute. Section 1956(a)(1) prohibits persons from conducting certain “financial transactions.” The statute provides that “the term ‘financial transaction’ means (A) a transaction which in any way or degree affects interstate of foreign commerce ... or (B) a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree.” 18 U.S.C. § 1956(c)(4). Thus, proof of a nexus with interstate commerce is necessary to establish the existence of a financial transaction, and proof of a financial transaction is needed to establish a violation of the statute. Indeed, our holding in Leslie would appear to resolve any remaining question of whether proof of a nexus with interstate commerce is needed to find a violation of the statute in individual cases. If “evidence that the individual transaction at issue had a de minimis effect on interstate commerce” is required to establish a violation of § 1956, Leslie, 103 F.3d at 1100, then it would seem that such an effect should be specifically alleged and proven. Because Congress prohibited money laundering only when the individual financial transaction at issue affects interstate or foreign commerce, proof of a nexus with interstate or foreign commerce is an essential element of the crime of money laundering. See id. at 1101; United States v. Heater, 63 F.3d 311, 318 (4th Cir.1995), cert. denied, 516 U.S. 1083, 116 S.Ct. 796, 133 L.Ed.2d 744 (1996); Grey, 56 F.3d at 1223-24; United States v. Kunzman, 54 F.3d 1522, 1526-27 (10th Cir.1995); United States v. Baker, 985 F.2d 1248, 1252 (4th Cir.1993). In the present case, we conclude that the indictment was sufficient on its face. Plainly, the indictment was defective in failing to explicitly allege a nexus with interstate or foreign commerce. However, Piggott was not prejudiced by this omission. The indictment alleges that several of the appellants conspired to “launder[] monetary instruments,” “by delivering narcotics proceeds” of approximately $4,000,000 “which was to be converted to cashier’s checks,” and “by delivering money to individuals who would arrange ... remittance] to narcotics suppliers.” As we" }, { "docid": "22169254", "title": "", "text": "a personal check. Prince caused two transactions to be conducted— one between the third party and the bank and one between the third party and Prince. See United States v. Cavalier, 17 F.3d 90 (5th Cir.1994). Upon completion of the transactions or dispositions, Prince then transferred the funds to White. This constitutes yet another disposition of the proceeds of wire fraud. Under the second type of arrangement, Defendant Prince instructed victims to wire money to third parties via Western Union. Prince effected a disposition or transfer by directing the third party, who had been instructed to retrieve the money from Western Union, to transfer the cash to him. Through such conduct, Prince has effected a disposition of the proceeds of the wire fraud. See United States v. Reed, 77 F.3d 139, 143 (6th Cir.1996) (en banc) (overruling United States v. Oleson, 44 F.3d 381 (6th Cir.1995) and United States v. Samour, 9 F.3d 531 (6th Cir.1993) to the extent that those cases held that the conduct of delivering drug proceeds or money intended to purchase drugs to a courier did not constitute a financial transaction under section 1956). In United States v. Baez, 87 F.3d 805, 810 (6th Cir.1996), we held that the following facts as provided in the plea agreement constituted a “financial transaction” in violation of 18 U.S.C. section 1956(a): “Baez violated the money laundering statute when he sent another individual from New Jersey to Ohio for the purpose of picking up approximately $349,-417.00 in drug trafficking proceeds and delivering the money to a place outside the state of Ohio.” Upon completion of the transaction or disposition from the third party to Prince, Prince then transferred the funds to White. This constitutes a second disposition of the proceeds of wire fraud. Under the third type of arrangement, Defendant Prince instructed victims to transfer money to him via Western Union. Prince testified that all of the money that victims transferred to him he transferred to Defendant White. This delivery of the wire fraud proceeds to White constitutes a financial transaction. Defendant Prince contends that no evidence supports the allegation" }, { "docid": "23245479", "title": "", "text": "116 L.Ed.2d 630 (1991). While Garza is correct that the phrase “move the money” does not describe in detail the financial transaction relied upon, we conclude that the indictment was nevertheless sufficient. The indictment tracks the statutory language for each of the elements of money laundering, which are that the defendant “(1) conducted or attempted to conduct a financial transaction, (2) which the defendant knew involved the proceeds of unlawful activity, (3) with the intent [either] to promote or further unlawful activity.” West, 22 F.3d at 590. In addition to these statutory bare bones, the indictment was “accompanied with such a statement of the facts and circumstances as ... informed the accused of the specific offense ... with which he [was] charged.” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2908, 41 L.Ed.2d 590 (1974). The indictment specified the date on which the event occurred, the exact dollar amount involved and the fact that the general type of transaction at issue was the movement of this money. See § 1956(c) (4) (A) (i). This description fairly informed Garza of the charge he would have to meet. It is also sufficient to bar future prosecutions for this same offense. We conclude that the district court did not err by refusing to dismiss Count 10. Garza also suggests that the evidence was insufficient to prove that he conducted a financial transaction. The government can prove a financial transaction by establishing the transfer or delivery of money, § 1956(c)(3), which can include giving it “over to the care or possession of another.” United States v. Puig-Infante, 19 F.3d 929, 938 (5th Cir.), cert. denied, — U.S. —, 115 S.Ct. 180, 130 L.Ed.2d 115 (1994). The trial evidence established that Garza received this money from Richard Bordayo in Michigan and delivered an Oldsmobile Toronado containing this money to Israel Flores to drive back to Texas. Garza emphasizes that Israel originally told Texas Department of Public Safety (DPS) troopers that he did not know of the money in the car and that Garza himself denied knowing of the money. However, Garza conveniently" }, { "docid": "15096141", "title": "", "text": "by this court’s opinions in United States v. Samour, 9 F.3d 531 (6th Cir.1993) and United States v. Oleson, 44 F.3d 381 (6th Cir.1995). Samour involved a defendant (Samour) who was convicted of money laundering under § 1956(a)(l)(A)(i) and (B)(i). On four separate occasions, Samour transferred drag proceeds to a courier who, in turn, used the proceeds to purchase marijuana and settle outstanding drug debts. Samour, 9 F.3d at 533-34. A panel of this court examined § 1956(a)(l)(A)(i) and the statutory definition of financial transaction in § 1956(e)(4) and concluded that “merely transporting cash does not meet the definition of a ‘financial transaction’ for purposes of the money laundering statute.” Id. at 536. Applying this rule to the facts of the case as it understood them, a divided panel decided that Samour’s activities constituted mere transportation and hence reversed his money laundering conviction. Id. In Oleson a jury convicted the defendant of money laundering under § 1956(a)(l)(A)(i) for giving a courier over $100,000 in drug proceeds for the purpose of facilitating continued marijuana trafficking. Oleson, 44 F.3d at 384. The panel, finding Samour dispositive, held that these facts did not establish a requisite financial transaction and reversed the conviction. Id. Upon re-examination of these cases and the money laundering statute, we now overrule Samour and Oleson to the extent that those cases found that the conduct of the respective defendants in delivering the money to a courier did not amount to, in the parlance of § 1956, “conducting] or attempting] to conduct” a “transfer [or] delivery” that “involvfed] the movement of funds by wire or other means” or involved “currency of the United States.” Such conduct constitutes a transfer or delivery for the purposes of establishing a financial transaction. For example, in this ease, defendant is alleged to have arranged for the exchange of the proceeds, accepted them into her possession, exercised control over the proceeds for a period of time, and authorized the release of the proceeds to another individual. Under these facts, the defendant here would clearly have effected a disposition of the proceeds. See United States v." }, { "docid": "6834978", "title": "", "text": "that the tribute payments to Cino and Caci (Cino having aided and abetted the tribute payment to, Caci) promoted the sale of counterfeit travelers’ checks, because without the tribute payments, Cino and Caci, higher-ups in the chain of command, would not have permitted the fraudulent scheme to continue. Cino also argues that his conviction on count 33 should be reversed, because the statute which Cino is charged with violating in that count is cited in the indictment as 18 U.S.C. § 1956(a)(1). That section prohibits laundering the actual proceeds of specified unlawful activity. The evidence at trial, however, established that the tribute payment came from an undercover agent. Cino argues that because that payment was not actually “proceeds” from specified unlawful activity, it would not support a conviction under § 1956(a)(1), which was the statute he was charged with violating. This argument lacks merit. The body of count 33 recites the elements of a violation of 18 U.S.C. § 1956(a)(3), which prohibits laundering property “represented to be” the proceeds of specified unlawful activity. Although count 33 erroneously cites § 1956(a)(1), this error is not fatal because it is clear that Cino was not prejudicially misled. See United States v. Bonallo, 858 F.2d 1427, 1431 (9th Cir.1988) (“[E]rror in the [correct statute’s] citation shall not be grounds for dismissal of the indictment or reversal of the conviction if the error ‘did not mislead the defendant to his prejudice.’” (quoting FED. R. CRIM. P. 7(c)(3))); United States v. Lipkis, 770 F.2d 1447, 1452 (9th Cir.1985) (“A conviction may be sustained on the basis of a statute ... other than that cited or even where none is cited at all, as long as it is clear that the defendant was not prejudicially misled.”). Cino’s argument that he did not engage in a financial transaction also lacks merit. A financial transaction includes a “ ‘transfer, delivery, or other disposition’ of money.” United States v. Gough, 152 F.3d 1172, 1173 (9th Cir.1998) (quoting 18 U.S.C. § 1956(c)(3)). Cino and Caci both engaged in a financial transaction when they accepted the tribute payments. II. A. Admission" }, { "docid": "23359018", "title": "", "text": "18 U.S.C. § 1956(a)(l)(A)(i) and (a)(2)(A). We conclude, however, that the government adduced evidence sufficient to support each count of conviction. 1. Section 1956(a)(l)(A)(i) Counts 2, 11-13, and 16 charged Garcia Abrego with laundering money in violation of 18 U.S.C. § 1956(a)(l)(A)(i), which criminalizes engaging in a financial transaction involving the proceeds of an unlawful activity with the intent to promote a specified unlawful activity. For purposes of § 1956(a)(1), a transaction is ‘“a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition’ or some action involving a financial institution or its facilities.” United States v. Puig-Infante, 19 F.3d 929, 938 (5th Cir.1994) (quoting 18 U.S.C. § 1956(c)(3)). “ ‘Disposition’ most commonly means ‘a placing elsewhere, a giving over to the care or possession of another.’ ” Id. (quoting Webster’s Third New International Dictionary 654 (Philip Babcock Grove ed.1961)). Garcia Abrego contends that the evidence adduced at trial was insufficient to support his convictions for counts 2, 11-13, and 16 because (1) the government failed to prove a transaction involving the funds at issue in each count because it offered no evidence of a disposition of the funds and (2) none of the funds were transferred to Garcia Abrego. We disagree. Sufficient evidence exists for the jury to conclude that the funds at issue in each of these counts were utilized in some form of transaction and that the money laundering offenses were committed by Garcia Abrego’s coconspirators in furtherance of the conspiracy described in Part III. D.l, swpra. Count 2 was based upon the seizure of $4,012,549 on February 4,1989 from a secret compartment in a van at Rapid Truck Repair in Houston. A special agent for the Criminal Investigation Division of the Internal Revenue Service testified that, on February 1, 1989, Alexander Guzman and Hector Castaño had driven the van to Memorial City Mall. At the mall, they turned the van over to Fernando Cordona and Henry Cortez, who had arrived at the mall in another vehicle. From this point forward, law enforcement officials maintained constant surveillance of the van until the time of its seizure. Cordona" }, { "docid": "15096134", "title": "", "text": "KENNEDY, J., delivered the opinion of the court, in which MERRITT, C.J., MARTIN, MILBURN, NELSON, RYAN, BOGGS, NORRIS, SILER, BATCHELDER, DAUGHTREY, and MOORE, JJ., joined. MARTIN, J. (pp. 143-44), also delivered a separate concurring opinion. KENNEDY, Circuit Judge. The government appeals the pre-trial dismissal of three counts of money laundering on the basis that the delivery or transfer of cash is not a “financial transaction” within the meaning of the money laundering statute, 18 U.S.C. § 1956. A majority of this court voted to hear this case en banc. For the following reasons, we reverse the decision of the District Court. I. Defendant Rosalind K. Reed, a criminal defense attorney, is charged with two counts of money laundering in violation of 18 U.S.C. § 1956(a)(l)(A)(i) for, on each of two occasions, accepting approximately $100,000, which represented the proceeds of unlawful activity, and then arranging for delivery of the currency to California with the intent of promoting a client’s continued marijuana trafficking. She is also charged in a conspiracy count relating to the same acts. The government filed a pre-trial motion to submit these money laundering counts to the jury with the instructions that “a ‘delivery’ of cash is a ‘financial transaction’ ” under the statute. The government’s brief in support of the motion sought to distinguish this case from this Court’s decisions in United States v. Samour, 9 F.3d 531 (6th Cir.1993), and United States v. Oleson, 44 F.3d 381 (6th Cir.1995), which held that when a defendant delivered or caused the delivery of cash representing drug proceeds to another person for the purchase of more drugs, it was “mere transportation” and was not a violation of § 1956(a) (1)(A) (i). In support of its motion, the government filed a brief indicating that its evidence would tend to establish the following: At the time of her indictment on drug and money laundering charges, defendant was representing one Richard Sumpter. Sump-ter was arrested in Detroit, Michigan, after he took possession of a van that had been driven from California to Michigan loaded with 560 pounds of marijuana. Apparently, Sumpter intended that" }, { "docid": "23507693", "title": "", "text": "it. United States v. Ismoila, 100 F.3d 380, 387 (5th Cir.1996). As to money laundering, the government must prove that the defendants (1) knowingly conducted a financial transaction (2) that involved the proceeds of an unlawful activity (3) with the intent to promote or further that unlawful activity. United States v. Thomas, 12 F.3d 1350, 1360 (5th Cir.1994). Garza and Garcia maintain that the government has failed to show any agreement by them to engage in any financial transaction. Garza and Garcia also argue that, in fact, no evidence exists to show that a financial transaction occurred. According to Garza and Garcia, the only evidence identified by the government consists of storage of currency and cocaine at Inoeencio’s Mavis Lane residence. No proof of wire transfers or other transactions involving currency was presented. After reviewing the record, we agree with Garza and Garcia. The government failed to present evidence of a financial transaction involving these defendants. A “financial transaetion” pursuant to § 1956 is “a transaction which in any way or degree affects interstate or foreign commerce (i) involving the movement of funds by wire or other means or (ii) involving one or more monetary instruments.... ” 18 U.S.C. § 1956(c)(4)(A). “By definition, then, a ‘financial transaction’ must, at the very least, be a ‘transaction,’ i.e., ‘a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition’ or some action involving a financial institution or its facilities.” United States v. Puig-Infante, 19 F.3d 929, 938 (5th Cir.1994) (citing 18 U.S.C. § 1956(c)(3)). When some “transaction” that does not involve a financial institution or its facilities is charged, the government must show that a “disposition” took place. A “disposition” has been defined by this Court to mean “ ‘a placing elsewhere, a giving over to the care or possession of another.’ ” Id. (quoting Webster’s Third New International Dictionary, 654 (1961)). We also note that currency does not become proceeds of drug trafficking until a drug sale has been completed. See United States v. Gaytan, 74 F.3d 545, 555-56 (5th Cir.), cert. denied, — U.S. -, 117 S.Ct. 77, 136 L.Ed.2d" }, { "docid": "6724553", "title": "", "text": "was one of Sumpter’s drug distributors in Detroit. Sumpter told Reed that he could not pay Reed her legal fees until Maddox paid off his drug debt to him, an amount which the two men estimated to be in excess of $400,000. Reed then brokered Maddox’s repayment by passing information between Maddox and Sumpter, who was incarcerated, and using her law offices as a drop-off and pick-up point for the money. On two separate occasions, on February 11, 1994 and March 10, 1994, Maddox delivered payments in excess of $100,000 to Reed’s office, where he was met by Diana Fitch, Sumpter’s wife. On each date, Maddox and Fitch counted the money in Reed’s office and paid Reed her legal fees in cash, $15,000 on the first visit, and $20,000 on the second. Joint Appendix (“J.A.”) at 557-58. After Reed was paid, the remainder of the money was stored in a bag in Reed’s office for Sump-ter’s drug courier to retrieve and transport to California, which he did on two subsequent dates. Sumpter and Maddox ultimately agreed to cooperate with government investigators. Their cooperation led to Reed’s indictment on one count of conspiracy to distribute marijuana, along with thirty-one other co-defendants who were members of Sumpter’s network, as well as two counts of money laundering and one count of conspiracy to commit money laundering. See Reed II, 167 F.3d at 987. After the district court refused to grant a proposed jury instruction stating that the act of delivering cash to a drug courier constituted a “financial transaction” for purposes of the money laundering statute, 18 U.S.C. § 1956, the three money laundering counts in the indictment against Reed were dismissed. The government then filed an interlocutory appeal and the case was heard by this court en banc. In United States v. Reed, 77 F.3d 139, 142 (6th Cir.) (en banc) (Reed I), cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996), we overruled two prior circuit cases and held that the delivery or transfer of cash to a drug courier, as alleged in the indictment, constituted a “financial" }, { "docid": "15096142", "title": "", "text": "44 F.3d at 384. The panel, finding Samour dispositive, held that these facts did not establish a requisite financial transaction and reversed the conviction. Id. Upon re-examination of these cases and the money laundering statute, we now overrule Samour and Oleson to the extent that those cases found that the conduct of the respective defendants in delivering the money to a courier did not amount to, in the parlance of § 1956, “conducting] or attempting] to conduct” a “transfer [or] delivery” that “involvfed] the movement of funds by wire or other means” or involved “currency of the United States.” Such conduct constitutes a transfer or delivery for the purposes of establishing a financial transaction. For example, in this ease, defendant is alleged to have arranged for the exchange of the proceeds, accepted them into her possession, exercised control over the proceeds for a period of time, and authorized the release of the proceeds to another individual. Under these facts, the defendant here would clearly have effected a disposition of the proceeds. See United States v. Puig-Infante, 19 F.3d 929, 938 (5th Cir.), cert. denied, - U.S. -, 115 S.Ct. 180, 130 L.Ed.2d 115 (1994). We do not hold that the mere transportation of cash meets the definition of a financial transaction. There must be a purchase, sale, transfer, delivery, etc. — some disposition of funds. However, this is not a case of mere transportation. A jury could conclude that the conduct alleged in the indictment constitutes a financial transaction under the statute. Accordingly, we reverse the decision of the District Court and reinstate counts three, four, and five of the indictment. Our understanding of the statute is consistent with other circuits that have discussed the issue of whether a transfer or delivery of cash is a financial transaction within the meaning of 18 U.S.C. § 1956. See United States v. Dimeck, 24 F.3d 1239, 1246 (10th Cir.1994); Puig-Infante, 19 F.3d at 937-39. c. defendant argues that due process bars her prosecution based on any interpretation of the money laundering stat-statannounced in this decision. She reasons that at the time of" }, { "docid": "22054656", "title": "", "text": "parties involved to smooth things out. Combining that fact with Al-burtis’ role in introducing the Oklahoma City load parties to each other and with his large financial stake in that drug transaction, we see no manifest miscarriage of justice in concluding that Alburtis associated with, participated in, and in some way acted to further the possession and distribution of marijuana on December 21, 1994, in the Western District of Texas. Alburtis’ other sufficiency of the evidence challenge relates to his convictions for substantive money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i) [Counts Four, Five and Six]. Count Four of the 1998 indictment alleges that on or about February 8, 1995, Alburtis “aided and abetted by others, did knowingly and willfully attempt to conduct a financial transaction affecting interstate and foreign commerce, to-wit: the attempted transfer and delivery of $432,000.00 in United States currency from another individual, which involved the proceeds of a specified unlawful activity.” Count Five is a similar charge but pertains to the transfer and delivery of $250,000 on or about March 2, 1995. Likewise, Count Six is another substantive money laundering charge concerning the transfer and delivery of approximately $50,000 to Barragan sometime in the spring of 1995. To prove money laundering under 18 U.S.C. § 1956(a)(1)(A)(i), the government must establish that the defendant 1) conducted or attempted to conduct a financial transaction, 2) which the defendant then knew involved the proceeds of unlawful activity, 3) with the intent to promote or further unlawful activity. United States v. Puig-Infante, 19 F.3d 929, 937 (5th Cir.1994). The $432,000 noted in Count Four resulted from the sale in the Northeast of the Oklahoma City load. Levrier assigned that money to Ed Moran to have him transport it to Texas. Ultimately, the police stopped Moran and seized the money. Alburtis contends that the government did not adduce any evidence that he ever handled, transported, or in any other way attempted to dispose of the $432,000, in violation of § 1956(a)(1)(A)(i). We disagree. The evidence revealed that the $432,000 was the product of the Oklahoma City load and that it" }, { "docid": "23350917", "title": "", "text": "delivering the money to a place outside the state of Ohio. This factual scenario is similar to the defendant’s conduct in United States v. Samour, 9 F.3d 531 (6th Cir.1993), in which Samour gave cash to a money courier in Ohio, which the courier then transported to Arizona to pay off drug debts and to purchase drugs. Over a dissent by Judge Kennedy, the panel ruled to reverse Samour’s money laundering conviction, holding that “merely transporting cash does not meet the definition of financial transaction” for purposes of 18 U.S.C. § 1956(a)(1). Id. at 536. In January, 1995, the court reached a similar conclusion in United States v. Oleson, 44 F.3d 381 (6th Cir.1995), relying on Samour to reverse Oleson’s conviction for money laundering on the grounds that defendant’s mere transportation or delivery of cash was not a “financial transaction” under to 18 U.S.C. § 1956. Oleson, 44 F.3d at 384. Although these decisions would have compelled this court to conclude that Baez’s acts of arranging for the pick-up or delivery of drug proceeds by a courier for transport across state lines could not support a conviction for money laundering in violation of 18 U.S.C. § 1956, this issue was recently revisited by this court in United States v. Reed, 77 F.3d 139 (6th Cir.1996). In Reed, the en banc court overruled Samour and Oleson to the extent that those cases found that the conduct of delivering drug proceeds or money intended to purchase drugs to a courier “did not amount to, in the parlance of § 1956, conducting or attempting to conduct a transfer or delivery that involved the movement of funds by wire or other means or involved currency of the United States.” Id. at 143 (internal quotations omitted). Applying the Reed decision to the facts of this case, there is no doubt that the conduct described in paragraph 15 of Baez’s plea agreement constitutes a “financial transaction” in violation of 18 U.S.C. § 1956(a). Accordingly, this court finds that defendant’s conviction for money laundering was supported by a factual basis as required by Federal Rule of Criminal" } ]

[ { "docid": "7677571", "title": "", "text": "to distribute 50 grams or more of cocaine base (21 U.S.C. § 846) and on three counts of distributing cocaine base in that amount (21 U.S.C. § 841(a)(1) & (b)(l)(A)(iii)). Jackson was sentenced for his convictions on one count of conspiracy to distribute cocaine base (21 U.S.C. § 846) and two counts of distribution (21 U.S.C. § 841(a)(1) & (b)(l)(A)(iii)). Jackson had three prior drug felony convictions, and thus received the same sentence as Walls. United States v. Walls, 841 F.Supp. 24, 26 (D.D.C.1994). It could be argued, the Supreme Court said in Rummel v. Estelle, 445 U.S. 263, 274-76, 100 S.Ct. 1133, 1139-40, 63 L.Ed.2d 382 (1980), that for crimes punishable by significant terms of imprisonment, “the length of the sentence is purely a matter of legislative prerogative” “properly within the province of legislatures, not courts.” See also Hutto v. Davis, 454 U.S. 370, 373-74, 102 S.Ct. 703, 704-06, 70 L.Ed.2d 556 (1982) (per curiam); Harmelin v. Michigan, 501 U.S. 957, 962-94, 111 S.Ct. 2680, 2684-2701, 115 L.Ed.2d 836 (1991) (opinion of Scalia, J., joined by Rehnquist, C.J.); id. at 996-1009, 111 S.Ct. at 2702 (Kennedy, J., joined by O’Connor & Souter, JJ., concurring in part and concurring in the judgment); United States v. McLean, 951 F.2d 1300, 1303 (D.C.Cir.1991), cert. denied, 503 U.S. 1010, 112 S.Ct. 1775, 118 L.Ed.2d 433 (1992). Despite the division in the Court in Harmelin, the Court sustained against an Eighth Amendment challenge a sentence of life imprisonment without parole imposed on a first-time offender convicted of possessing 672 grams of cocaine. 501 U.S. at 961, 111 S.Ct. at 2684. It Mows that the life sentences imposed on Walls and Jackson — recidivist drug offenders convicted of selling 486 grams of cocaine base — were not cruel or unusual. As we said in McLean, 951 F.2d at 1303, the Eighth Amendment does not prohibit legislatures from combating “recidivism by imposing long sentences on criminals with a prior record.” B The second sentencing issue also relates to Walls and Jackson. They say that in light of the Mowing evidence, they should have been sentenced as" } ]

[ { "docid": "22594654", "title": "", "text": "sentence, pursuant to 21 U.S.C. § 841(b)(1)(A)(iii), is grossly disproportionate under the Eighth Amendment as a result of an over-stated criminal history and in comparison to his co-defendants’ sentences. Graham acknowledges this court’s decision in United States v. Hill that mandatory minimum sentences under 21 U.S.C. § 841(b)(1)(A)(iii) do not constitute cruel and unusual punishment. United States v. Hill, 30 F.3d 48, 50-51 (6th Cir.), cert. denied, 513 U.S. 943, 115 S.Ct. 350, 130 L.Ed.2d 305 (1994), 513 U.S. 1025, 115 S.Ct. 597, 130 L.Ed.2d 508 (1994). Hill confirmed that this court adheres to the Supreme Court’s “ ‘narrow proportionality principle’ ” announced in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), stating that “the Eighth Amendment only prohibits] ‘extreme sentences that are “grossly disproportionate” to the crime.’ ” Hill, 30 F.3d at 50 (quoting Harmelin, 501 U.S. at 995-97, 1001, 111 S.Ct. 2680); Harmelin, 501 U.S. at 994-95, 111 S.Ct. 2680 (“Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense.... ”). Graham attempts to distinguish Hill on the grounds that his sentence “was triggered by an over-represented criminal history” rather than just the statute, and that the government did not present direct evidence that he “possessed anything.” Appellant Br. at 23. These arguments do not distinguish Hill. To uphold a mandatory life term without parole for a third-time felony conspiracy-to-distribute offender responsible for 177.8 grams of cocaine base, Hill relied upon Harmelin, in which the Supreme Court upheld the same sentence for a first-time felony possession offender with 650 grams of cocaine. Hill, 30 F.3d at 50-51. The Hill court neither considered the impact of the defendant’s two prior qualifying felonies, except to note that they existed, id. at 49, nor remarked on whether the defendant “possessed anything,” id. at 49-51. We have repeatedly rejected claims similar to those that Graham raises. Caver, 470 F.3d at 247 (rejecting as meritless any Eighth Amendment claim that fails to distinguish Hill). The fact that Graham’s current felony conviction is for conspiracy to distribute in excess of fifty grams does not" }, { "docid": "1676383", "title": "", "text": "felony drug offenses. Whitehead appeals, arguing that (1) the mandatory minimum life sentence imposed constitutes cruel and unusual punishment, (2) the district court erroneously applied the enhanced sentence without a jury finding that the government had proved the existence of prior convictions beyond a reasonable doubt, (3) the enhancement was not justified because the government had not demonstrated that more than 50 grams of the cocaine was crack cocaine, and (4) the district court abused its discretion when it denied Whitehead’s motion for a continuance to retain new counsel. Whitehead also insisted that his counsel present an additional list of issues in his reply brief. II. Analysis A. Whitehead urges us to apply the proportionality review established in Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), and find the mandatory life sentence imposed under 21 U.S.C. § 841(b)(l)(A)(iii) cruel and unusual punishment in violation of the Eighth Amendment. An Eighth Amendment violation may be found only “ ‘in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.’ ” See Henderson v. Norris, 258 F.3d 706, 712 (8th Cir.2001) (quoting Harmelin, 501 U.S. at 1005, 111 S.Ct. 2680 (opinion of Kennedy, J.)); see also Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (noting that the “gross disproportionality principle ... [is] applicable only in ... ‘exceedingly rare’ and ‘extreme’ case[s].” (citation omitted)). This is not such a case. Because Whitehead had been convicted of five prior felony drug offenses, see Rummel v. Estelle, 445 U.S. 263, 276, 284-85, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (holding that recidivism may support the imposition of a severe penalty), and because cocaine distribution represents a grave threat to society, United States v. Johnson, 944 F.2d 396, 408-09 (8th Cir.1991), we do not consider his sentence grossly disproportionate to the crime. See, e.g., United States v. Collins, 340 F.3d 672, 679-80 (8th Cir.2003) (upholding a life" }, { "docid": "21561529", "title": "", "text": "the Supreme Court handed down its opinion in Harmelin v. Michigan, — U.S. —, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), which upheld a mandatory life imprisonment sentence without possibility of parole for conviction of possession of more than 650 grams of cocaine. Although the Court was split in its reasoning, it is clear from the various opinions generated in that case that mandatory sentences are permissible for non-capital punishment. Thus, Harmelin discredits appellant’s argument that his mandatory minimum sentence is unconstitutional because it deprives him of “individualized” sentencing. Turning to appellant’s proportionality argument, we likewise find no Eighth Amendment problem. Although a majority of the Court in Harmelin held that the constitution does impose a proportionality requirement on non-capital sentences, con siderable latitude is to be given to the legislature or Congress in setting sentences. The appellant is correct in asserting that “[t]he Armed Career Criminal Act calls for a mandatory minimum punishment which is greater than the maximum term imposed on many persons convicted of homicide,” Appellant’s Brief at 18. However, the Supreme Court has upheld similarly severe sentences for drug offenses. For example, in Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982), the Supreme Court rejected an Eighth Amendment challenge to a prison term of 40 years and fine of $20,000 for possession and distribution of approximately nine ounces of marijuana. Similarly, in Harmelin, the Court upheld a life sentence with no possibility of parole for a defendant convicted of possession of slightly more than 650 grams of cocaine. In the case at hand, appellant was convicted for possession of 641 grams of cocaine. Although appellant contends that the mixture seized was of low concentration and virtually “unmarketable,” 21 U.S.C. § 841 does not require any degree of drug purity for a conviction. We think it is clear that the sentence at issue here is constitutionally sound. Although the ten-year minimum prescribed by § 841 is indeed a harsh penalty, it hardly compares to a life sentence without parole as was at issue — and upheld — in Harmelin. We therefore reject" }, { "docid": "11722487", "title": "", "text": "marks omitted). “[W]e accord substantial deference to Congress, as it possesses ‘broad authority to determine the types and limits of punishments for crimes.’ ” Id. at 1323 (quoting Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)). “[A] sentence which is not otherwise cruel and unusual does not become so simply because it is mandatory.” Id. at 1324 (alteration and internal quotation marks omitted). Given the serious nature of possessing a machine gun in furtherance of drug-trafficking crimes, Beckford’s 30-year statutory mandatory minimum sentence imposed under § 924(c)(1)(B)(ii) is not grossly disproportionate to the offense. See Harmelin v. Michigan, 501 U.S. 957, 961, 966, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (upholding a life-without-parole sentence when the defendant, a first-time offender, possessed more than 650 grams of cocaine). Beckford attempted to possess and distribute a large quantity of drugs— larger than that in Harmelin — and equipped himself with tools for violence. Thus, his sentence was not grossly disproportionate to his offense, and it therefore does not violate the Eighth Amendment. 2. Substantive reasonableness In the alternative, Beckford contends that his 438-month sentence is substantively unreasonable because the district court (1) denied his request for a sentencing reduction based on sentencing factor manipulation and (2) sentenced him above the mandatory minimum of 420 months. “The reasonableness of a final sentence is reviewed only for an abuse of discretion.” United States v. Docampo, 573 F.3d 1091, 1096 (11th Cir.2009) (internal quotation marks omitted). Beckford’s 438-month total sentence consisted of 360 months’ imprisonment for Count 4; 78 months’ imprisonment for each of Counts 1, 2, 3, and 7, each to run concurrently; and 60 months’ imprisonment for Count 6, to run concurrently with his 78-month term. Beckford asserts that the government improperly pressured him to buy more drugs than he originally intended to purchase and to pay for the drugs with guns. The government responds that Beckford has not proved that the government’s conduct was so outrageous as to warrant a downward adjustment. “[Sentencing factor manipulation occurs when the government’s manipulation of a sting operation, even if" }, { "docid": "15006868", "title": "", "text": "PER CURIAM: Brant appeals from a 188-month sentence imposed for manufacturing marijuana. Invoking the Fifth Amendment and the Eighth Amendment, he challenges the sentence. Because the career offender provisions of the Sentencing Guidelines, which led to Brant’s sentence, violate neither the Fifth nor the Eighth Amendments, we affirm. Brant pled guilty to one count of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1). He conceded that he could be held accountable for 100 plants. His criminal record included earlier state court convictions for (i) growing marijuana with intent to distribute; (ii) selling marijuana; (iii) armed robbery; and (iv) escape. The probation office applied the career offender provisions set forth at U.S.S.G. § 4B1.1 to determine his guideline range. Application of section 4B1.1 increased Brant’s total offense level from 23 to 31 and his Criminal History Category from IV to VI. The low end of his guideline range under section 4B1.1 increased from 70 to 188 months. Brant says that the application of the career offender provisions violated the Eighth Amendment prohibition against the imposition of cruel and unusual punishment. He argues that the sentence is (i) disproportionate to the offense; and (ii) excessive when compared to the sentences imposed for other federal crimes and for drug trafficking crimes under state law. In non-capital cases, the Eighth Amendment encompasses, at most, only a narrow proportionality principle. Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (upholding mandatory non-parolable life sentence imposed upon accused convicted of possessing more than 650 grams of cocaine). Before Harmelin, we considered three elements in analyzing proportionality arguments: (1) the gravity of the offense and the harshness of the sentence; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir.1992) (citing Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)), cert. denied, — U.S. -, 113 S.Ct. 1423, 122 L.Ed.2d 792 (1993). But, this Court, construing Harmelin, recently modified the three factor Solem test." }, { "docid": "15006869", "title": "", "text": "of cruel and unusual punishment. He argues that the sentence is (i) disproportionate to the offense; and (ii) excessive when compared to the sentences imposed for other federal crimes and for drug trafficking crimes under state law. In non-capital cases, the Eighth Amendment encompasses, at most, only a narrow proportionality principle. Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (upholding mandatory non-parolable life sentence imposed upon accused convicted of possessing more than 650 grams of cocaine). Before Harmelin, we considered three elements in analyzing proportionality arguments: (1) the gravity of the offense and the harshness of the sentence; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir.1992) (citing Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)), cert. denied, — U.S. -, 113 S.Ct. 1423, 122 L.Ed.2d 792 (1993). But, this Court, construing Harmelin, recently modified the three factor Solem test. Id. The new test directs the reviewing court to consider the remaining Solem factors only if the court has first made a threshold determination that the sentence imposed is grossly disproportionate to the offense. Id. (approving reasoning of McGruder v. Puckett, 954 F.2d 313 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 146, 121 L.Ed.2d 98 (1992)). The Supreme Court has squarely rejected an Eighth Amendment challenge to a 40-year sentence imposed under Virginia law for possession of nine ounces marijuana. Hutto v. Davis, 454 U.S. 370, 371-375, 102 S.Ct. 703, 704-706, 70 L.Ed.2d 556 (1982). More recently, under the newly modified Solem test, we have rejected an Eighth Amendment challenge to the mandatory life sentence provisions of 21 U.S.C. § 841(b)(1). See United States v. Willis, 956 F.2d 248, 251 (11th Cir.1992) (cocaine offense); see also United States v. Diaz, 26 F.3d 1533, 1545 (11th Cir.1994) (cocaine offense), cert. denied, — U.S. -, 115 S.Ct. 952, 180 L.Ed.2d 895 (1995). In the light of these precedents, the 15.66 year sentence imposed in this" }, { "docid": "23176096", "title": "", "text": "that Wiest committed the robberies, and used the gun to do them. C. Wiest argues that the mandatory minimum sentence of 684 months (57 years) for his three 18 U.S.C. § 924(c) convictions violates the Eighth Amendment. This court reviews de novo an Eighth Amendment challenge to a sentence. United States v. Paton, 535 F.3d 829, 837 (8th Cir.2008). Under 18 U.S.C. § 924(c)(1)(B) and (C), Wiest’s first conviction for a § 924(c) offense required a sentence of not less than 7 years, and the subsequent two convictions each required a 25-year sentence. All of the § 924(c) sentences must be served consecutively to one another and to Wiest’s robbery counts. 18 U.S.C. § 924(c)(l)(D)(ii). The “second or subsequent” conviction can occur in the same proceeding. Deal v. United States, 508 U.S. 129, 134-36, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). “The Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ ” Ewing v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (rejecting an argument that California’s three-strikes law violated the Eighth Amendment in a case when Ewing was sentenced to 25-years-to-life after stealing three golf clubs) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-97, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment)). It is exceedingly rare for an offense that does not have a capital sentence to violate the Eighth Amendment. Paton, 535 F.3d at 838 (upholding a life sentence for five counts of production of child pornography). This court has adopted Justice Kennedy’s analysis in Harmelin to determine whether a sentence is “grossly disproportionate” to a crime and thus violates the Eighth Amendment. See Henderson v. Norris, 258 F.3d 706, 708-09 (8th Cir. 2001). The following principles inform the proportionality analysis: “the primacy of the legislature, the variety of legitimate penological schemes, the nature of the federal system, and the requirement that proportionality review be guided by objective factors.” Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680. These principles inform the final principle that the “Eighth" }, { "docid": "22594653", "title": "", "text": "counsel cross-examined each government witness about his or her potential biases and credibility issues, and the district court instructed the jury about how to utilize co-conspirator and paid-informant testimony during Goodwin’s testimony and after Payne testified, respectively. See Doc. 123 (Trial Tr. # 1 at 34); Doc. 124 (Trial Tr. #2 at 98). Graham stated on the record, outside the jury’s presence, that he understood his right to testify and that he did not want to testify. Doc. 125 (Trial Tr. # 3 at 55-56). From our review of the entire trial transcript, we conclude that there was sufficient evidence, viewed in the light most favorable to the government, from which a reasonable jury could have found the essential elements of Counts One, Six, and Seven beyond a reasonable doubt. B. Denial of Graham’s Motion to Disregard Life Sentence 1. Impact of United States v. Hill We review de novo a constitutional challenge to a sentence. United States v. Jones, 569 F.3d 569, 573 (6th Cir.2009). Graham argues that the district court erred because his sentence, pursuant to 21 U.S.C. § 841(b)(1)(A)(iii), is grossly disproportionate under the Eighth Amendment as a result of an over-stated criminal history and in comparison to his co-defendants’ sentences. Graham acknowledges this court’s decision in United States v. Hill that mandatory minimum sentences under 21 U.S.C. § 841(b)(1)(A)(iii) do not constitute cruel and unusual punishment. United States v. Hill, 30 F.3d 48, 50-51 (6th Cir.), cert. denied, 513 U.S. 943, 115 S.Ct. 350, 130 L.Ed.2d 305 (1994), 513 U.S. 1025, 115 S.Ct. 597, 130 L.Ed.2d 508 (1994). Hill confirmed that this court adheres to the Supreme Court’s “ ‘narrow proportionality principle’ ” announced in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), stating that “the Eighth Amendment only prohibits] ‘extreme sentences that are “grossly disproportionate” to the crime.’ ” Hill, 30 F.3d at 50 (quoting Harmelin, 501 U.S. at 995-97, 1001, 111 S.Ct. 2680); Harmelin, 501 U.S. at 994-95, 111 S.Ct. 2680 (“Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense.... ”). Graham attempts" }, { "docid": "22052119", "title": "", "text": "in the cases of Gonzales and Contreras pending the Supreme Court’s decisions in Booker and Fanfan. If the Supreme Court rules that its Blakely decision does not apply to the sentencing guidelines, we will amend this opinion to address the sentencing challenges that Contreras and Gonzales had raised prior to Blakely. Gavaldon has also filed a motion seeking to raise a Blakely challenge to his sentence. After reviewing the record, however, we do not find Blakely to be implicated in Gavaldon’s ease. Therefore, we do not vacate Gavaldon’s sentence. Because of the potential broad-ranging implications that the Supreme Court’s decisions in Booker and Fanfan may have in federal sentencing, however, we will, out of an abundance of caution, order that the mandates as to all appellants except Sanchez be stayed until further order of the court. See United States v. Lenoci, 377 F.3d 246, 248 n. 1 (2d Cir.2004). A. Fernandez’s constitutional challenges to his life sentences Fernandez argues that the life sentences imposed on him because of his convictions on the RICO counts (counts one and two) violate the Eighth Amendment because they are grossly disproportionate to the sentence he might have received if convicted in another state. We review de novo whether a sentence violates the Eighth Amendment. United States v. Bland, 961 F.2d 123, 128 (9th Cir.1992). Fernandez’s life sentence is not so grossly disproportionate that it violates the Eighth Amendment. In Harmelin v. Michigan, the Supreme Court held that a sentence of life without parole for the crime of possessing 672 grams of cocaine did not violate the Eighth Amendment. 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991); see id. at 1009 (Kennedy, J., concurring in part and concurring in the judgment). Fernandez’s RICO convictions were predicated on the jury’s finding that he had committed the crime of conspiracy to commit murder, a crime at least as grave as the drug possession at issue in Harmelin. Moreover, the defendant in Harmelin was a first-time offender, whereas Fernandez has a long history of serious criminal conduct. The Supreme Court has recently recognized that a defendant’s" }, { "docid": "21684259", "title": "", "text": "for the death-results element is of no consequence. Criminal statutes frequently punish defendants for their action’s unintended consequences. “It is unusual to impose criminal punishment for the consequences of purely accidental conduct. But it is not unusual to punish individuals for the unintended consequences of their unlawful acts.” Dean v. United States, 556 U.S. 568, 575, 129 S.Ct. 1849, 173 L.Ed.2d 785 (2009) (using the felony-murder rule as an example). Thus, § 841(b)(1)(C) is not unconstitutionally vague. Finally, Waldrip argues that his sentence violates the Eighth Amendment’s proportionality requirement. “Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.” Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). In the drug context, the Supreme Court has upheld a sentence of life in prison without the possibility of parole for a first-time offender possessing 672 grams of cocaine, Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), and consecutive twenty-year terms for possession of marijuana with the intent to distribute, Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982). A 280-month sentence for selling heroin that causes death is not among the rare cases “in which comparing the gravity of the offense to the harshness of the sentence leads to an inference of gross dispropor-tionality.” United States v. Gross, 437 F.3d 691, 693 (7th Cir. 2006). III. Conclusion For those reasons, Waldrip’s conviction and sentence are AFFIRMED. . The district court also sentenced Waldrip to 240 months for the three distribution,counts that he pled guilty to, to be served concurrently- . Waldrip did not argue in his first brief that § 841(b)(1)(C) is so standardless that it invites arbitrary enforcement. At the district court, Waldrip argued that his sentence violated the Equal Protection Clause. Waldrip contended that he was charged because he was black while Wilson got a deal to cooperate because he was white. The court rejected that argument. In his reply brief, Waldrip attempted to reraise the equal-protection issue by intertwining it with a claim that the disparity" }, { "docid": "23171357", "title": "", "text": "begins. Such an interpretation allows the defendant ample time to determine whether he should enter a plea or go to trial, and to plan his trial strategy with full knowledge of the consequences of a potential guilty verdict. Further, the government is not overly burdened. If the government encounters difficulty discovering prior convictions, section 851 allows it to seek a postponement of the trial. Here, the government did not comply with the requirements of section 851, and Wilson’s sentence must be vacated. 3. Eighth Amendment Miller also contends , based on Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), that his sentences of life imprisonment without parole, pursuant to section 841(b)(l)(A)(iii), violate the eighth amendment because the sentences are not proportionate to the offenses. In Solem, the Supreme Court held unconstitutional a sentence of life imprisonment without parole imposed on a defendant who had been convicted of uttering a $100 no account check following six prior felony convictions. The Court enumerated three factors to consider when reviewing the proportionality of a sentence. A reviewing court should look at the gravity of the offense and the harshness of the penalty, the penalties imposed on other criminals in the same jurisdiction, and the sentences imposed for the commission of the same offense in other jurisdictions. Id. at 290-92, 103 S.Ct. at 3009-11. Since this case was submitted, however, the Supreme Court has substantially refined the application of the Solem factors. See Harmelin v. Michigan, — U.S. -, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). In Harmelin, the Court upheld a mandatory life sentence without parole imposed under Michigan law for possessing more than 650 grams of cocaine. Harmelin had argued that his sentence violated the eighth amendment’s ban on cruel and unusual punishment because it was not proportionate to his offense and because the sentencing court was not allowed to consider mitigating circumstances. A majority of the Court rejected both arguments and voted to affirm the judgment. Five justices agreed that mandatory sentences and life imprisonment without parole, in cases such as this, are not constitutionally infirm." }, { "docid": "12410095", "title": "", "text": "mandatory minimum sentence Rabón received is unconstitutional At Rabon’s sentencing, the district court found that, under the guidelines, Rabón would be facing a range of 188 to 235 months incarceration. However, because Rabón had a prior felony narcotics conviction, the terms of 21 U.S.C. § 841(b)(1)(A) dictated a mandatory minimum of 240 months imprisonment, and the district court judge sentenced Rabón to that period of confinement. On appeal, Rabón argues that the mandatory 240 month sentence provided in § 841(b)(1)(A) constitutes cruel and unusual punishment under the Eighth Amendment and violates the due process clause of the Fifth Amendment, since it does not permit the district judge to “evaluate] matters traditionally and constitutionally geared to decrease terms of imprisonment.” Rabon’s first contention is that the mandatory minimum sentence he received is unconstitutional because it prevents the sentencing judge from taking into account mitigating factors. The argument that a mandatory minimum sentence which prevents the sentencing judge from taking into account mitigating factors has been thoroughly considered by many appellate courts and was rejected by the Supreme Court in Harmelin v. Michigan, 501 U.S. 957, 994-95, 111 S.Ct. 2680, 2701-02, 115 L.Ed.2d 836 (1991), and we will not dwell further on it here. Rabon’s second argument, that a mandatory minimum sentence serves no rational deterrent purpose, and therefore violates due process, has likewise been rejected by the Supreme Court. See Chapman v. United States, 500 U.S. 453, 464-68, 111 S.Ct. 1919, 1927-29, 114 L.Ed.2d 524 (1991); United States v. Velasco, 953 F.2d 1467, 1476 (7th Cir.1992). Thus, Rabon’s arguments are without merit. XI. Whether the district court’s refusal to permit Rosa to collaterally challenge a prior conviction used to enhance his sentence was proper Rosa was convicted of possession with intent to distribute cocaine, attempted possession with intent to distribute cocaine, and conspiracy to possess with intent to distribute cocaine. Based on the fact that Rosa had two prior state felony drug offense convictions, his sentence was enhanced from the roughly fourteen-year sentence he would have received, to a term of mandatory life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). Rosa" }, { "docid": "10546693", "title": "", "text": "Michigan, — U.S. -, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), the Supreme Court held that a mandatory life sentence without the possibility of parole for a first drug conviction did not amount to cruel and unusual punishment. Although a majority of the Court did not agree to what extent the Eighth Amendment requires proportionality review in non-capital cases, this much was clear: regardless of what kind of proportionality review is required, a life sentence without parole for a drug crime of Harmelin’s magnitude (he was convicted of possessing over 650 grams of cocaine) is not cruel and unusual punishment. We see nothing to distinguish this case from Harmelin, except the fact that Harvey has two prior felony drug convictions. This difference does not weigh in his favor. Harvey’s additional claims that sentencing under 21 U.S.C. § 841(b)(1)(A) denied him effective assistance of counsel, and that his sentence violates the Due Process and Equal Protection Clauses are also without merit. We decline to discuss them further. One other matter deserves comment. Chief Judge Sachs was troubled by the necessity of imposing a sentence of life imprisonment without release on Harvey, who was twenty-four years old at the time. He observed that “the prior drug offenses, although felonies, were not deemed serious enough to merit imprisonment and appear to be only technically within the statutory punishment plan.” Sentencing Transcript at 14. The Court also viewed Harvey’s “immaturity of judgment [as] a consideration.” Ibid. The Court then recommended that Harvey be given executive clemency after serving fifteen years. In that event, the Court added, a period of ten years of supervised release would be added to the sentence. We agree with this recommendation. As the Supreme Court noted in Harmelin, 111 S.Ct. at 2702, executive clemency is one of the “flexible techniques” for modifying sentences. The existence of these techniques is one reason for the Supreme Court’s holding that the type of sentence imposed in this case does not violate the Eighth Amendment. We instruct counsel for the United States to deliver a copy of the sentencing tran script and of this" }, { "docid": "14221335", "title": "", "text": "felony convictions, to the mandatory sentence of life in prison without parole. Travis argues that section 841(b)(l)(A)’s mandatory life sentence constitutes cruel and unusual punishment in violation of the eighth amendment based on Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), because the statute requires no review of whether a sentence is proportional to a defendant’s crime. The Supreme Court recently mod ified its views in Harmelin v. Michigan, — U.S. -, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), and held that the eighth amendment forbids only extreme sentences that are “grossly disproportionate to the crime.” Id. 111 S.Ct. at 2707 (Opinion of Kennedy, J.). The Harmelin Court concluded that a sentence of life without parole for a serious drug crime (possessing less than one kilo of cocaine) is not cruel and unusual punishment. Id. Here, Travis committed a serious drug crime and also has three prior drug felony convictions. We cannot say as a matter of law that the mandatory sentence of life in prison violates the eighth amendment’s ban on cruel and unusual punishment. United States v. Harvey, 946 F.2d 1375, 1378 (8th Cir.1991); United States v. Johnson, 944 F.2d 396, 408-09 (8th Cir.), cert. denied, — U.S. -, 112 S.Ct. 646, 116 L.Ed.2d 663 (1991). We have considered the remainder of Travis’s arguments against his sentence and hold them to be without merit. J. Roulette’s Sentence We now comment on the severe sentence meted out to Roulette, age twenty-four, a person without any prior felony convictions. Roulette will serve a total of forty-four years and seven months in prison without parole for this first conviction. The sentence amounts to practically a life sentence. The heavy sentence rests on counts V and VIII, each alleging Roulette’s willful use of a firearm during a drug transaction in violation of 18 U.S.C.A. § 924(c) (West Supp.1991). Upon conviction, the district judge imposed a sentence of nineteen years seven months for counts I, II, III, IV, VI and VII, imposed a consecutive sentence of five years for count V and an additional consecutive sentence of twenty" }, { "docid": "2004560", "title": "", "text": "carries the greatest maximum term of imprisonment controls. Id. commentary, application note 2. The career offender provision also mandates that all career offenders be assigned a criminal history category of VI. Id. § 4B1.1. In applying the career offender provision, the district court looked to subsection 841(b)(l)(B)(iii) to determine the Offense Statutory Maximum because possession with intent to distribute more than five grams of cocaine base (punishable under subsection 841(b)(l)(B)(iii)) carries a greater maximum term of imprisonment than possession with intent to distribute cocaine (punishable under subsection 841(b)(1)(C)). In determining the Offense Statutory Maximum under subsection 841(b)(l)(B)(iii), the district court considered Garrett’s two pri- or felony drug convictions and concluded that life imprisonment was the maximum term. The trial judge then assigned Garrett a base offense level of 37, see U.S.S. G. § 4B1.1, and sentenced him to a term of imprisonment of 360 months on each count, to be served concurrently. Garrett objects to this calculation on several grounds. He first contends that his thirty year sentence constitutes cruel and unusual punishment under the eighth amendment. Keeping in mind that the Supreme Court has held that a forty year sentence for possession with intent to distribute nine ounces of marijuana does not violate the eighth amendment, see Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982), we conclude that this claim lacks merit. See also Harmelin v. Michigan, — U.S. -, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (upholding constitutionality of mandatory life imprisonment without possibility of parole for possession of more than 650 grams of cocaine). Garrett next asserts that using his earlier drug convictions to determine his current sentence subjects him to double jeopardy. The Supreme Court has held otherwise. In Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948), the Court held: “The sentence as a ... habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.” Id." }, { "docid": "23162548", "title": "", "text": "rights under the Fourteenth Amendment insofar as it vests all discretion in the Attorney General and the United States Attorney and confers no discretion on the sentencing judge. This argument is foreclosed by our decision in United States v. Van Winrow, 951 F.2d 1069 (9th Cir.1991), where we rejected the argument that the imposition of a life sentence for three prior drug convictions under 21 U.S.C. § 841(b)(1)(A) violates due process by depriving the trial judge of discretion to impose sentence. We held that such sentences are “individualized according to quantity and variety of narcotic possession” and “according to the number of prior felony drug convictions,” and thereby comport with due process. Id. at 1071. C. Eighth Amendment Finally, Jensen argues that the sentencing scheme imposed a sentence that was not “proportional” to the crime, thereby subjecting him to cruel and unusual punishment in violation of the Eighth Amendment. This argument is foreclosed by the Supreme Court’s decision in Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (affirming Michigan court’s imposition of a life sentence for a first time conviction for drug possession holding that such sentence does not violate the Eighth Amendment); see also United States v. Van Winrow, 951 F.2d 1069, 1071 (9th Cir.1991) (rejecting defendant’s argument that the imposition of a life sentence for three prior drug convictions under 21 U.S.C. § 841(b)(1)(A) was cruel and unusual in violation of the Eighth Amendment). V. CONCLUSION We conclude that Sergeant Cook had probable cause to arrest Jensen for suspicion of drug trafficking under the collective knowledge doctrine. We therefore affirm the district court’s denial of Jensen’s motion to suppress the evidence seized from his vehicle and residence. Moreover, we reject Jensen’s arguments regarding the constitutionality of the statutory scheme under which he was sentenced, 21 U.S.C. § 841 and 21 U.S.C. § 851. Accordingly, we affirm the district court’s sentence of life imprisonment without parole. AFFIRMED. . We agree with the district court that the law enforcement officers had \"reasonable suspicion” for the initial traffic stop. See Alabama v. White, 496 U.S." }, { "docid": "23087589", "title": "", "text": "disproportionate to the crime are prohibited.” Flowal, 163 F.3d at 963-64. A plurality of the Court rejected the defendant’s assertion that his life term without parole was disproportionate because it was his first felony conviction. Harmelin v. Michigan, 501 U.S. 957, 994, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Instead, the Court observed that the de fendant had been convicted of possession of more than 650 grams of cocaine and held that Michigan could determine that the seriousness of the offense warranted the severe sentence. Id. at 990, 111 S.Ct. 2680. Here, too, Turns has never been convicted of a felony before. However, he was convicted of participating in four separate armed bank robberies. Even though his role was to drive the getaway car, he was fully aware of the crime he was participating in and thus his culpability is not diminished. Furthermore, at least one of the guns used in the course of the robberies was traced back to Turns, who had purchased it in 1993 and had given it to Rogers. Turns was sentenced to five years for the first of four counts of armed bank robbery brought pursuant to 18 U.S.C. § 2113(a) and (d) and to twenty years for the remaining three counts, to run consecutively. No one of these sentences is intrinsically “grossly disproportionate” to the crime of armed bank robbery. Mandating consecutive sentences is not an unreasonable method of attempting to deter a criminal, who has already committed several offenses using a firearm, from doing so again. See Harmelin, 501 U.S. at 994, 111 S.Ct. 2680 (stating that mandatory penalties are not “unusual in the constitutional sense”). This court has addressed a similar claim in an unpublished decision. United States v. Clark, 41 Fed. Appx. 745 (6th Cir.2002). A defendant argued that his thirty-two-year sentence for two convictions under 18 U.S.C. § 924(c) violated the Eighth Amendment’s prohibition on cruel and unusual punishment. The panel addressed the merits of the defendant’s claim, even though it did not appear that his counsel had raised this issue at the sentencing hearing, which would ordinarily preclude review," }, { "docid": "7818490", "title": "", "text": "to cocaine does not violate substantive due process and does not constitute cruel and unusual punishment under the Eighth Amendment); United States v. Dunson, 940 F.2d 989 (6th Cir.1991) (mandatory 20-year sentence for second felony drug offense does not violate Eighth Amendment’s prohibition against cruel and unusual punishment), cert. denied, — U.S. -, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992), overruled by, United States v. Ferguson, 8 F.3d 385 (6th Cir.1993) (overruled on other grounds); United States v. Levy, 904 F.2d 1026 (6th Cir.1990) (failure to define “cocaine base” did not render 841(b) impermissibly vague), cert. denied sub nom., Black v. United States, 498 U.S. 1091, 111 S.Ct. 974, 112 L.Ed.2d 1060 (1991), it has not directly decided if a mandatory term of life imprisonment without release upon a third felony drug conviction violates the Eighth Amendment’s prohibition against cruel and unusual punishment. In reviewing Eighth Amendment challenges, this circuit has adhered to the “narrow proportionality principle” articulated in Harmelin v. Michigan, 501 U.S. 957, 995-97, 111 S.Ct. 2680, 2702, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring). See United States v. Hopper, 941 F.2d 419 (6th Cir.1991). In Harmelin, a plurality rejected the argument that the Eighth Amendment required a strict proportionality between crime and sentence and instead concluded that the Eighth Amendment only prohibited “extreme sentences that are ‘grossly disproportionate’ to the crime.” Harmelin, 501 U.S. at 1001, 111 S.Ct. at 2705. Applying its narrow proportionality principle, the plurality in Harmelin rejected defendant’s assertion that his life term without parole was disproportionate because it was his first felony conviction. Instead, the plurality observed that defendant had been convicted of possession of more than 650 grams of cocaine and determined that the seriousness of the offense warranted the severe sentence. Accordingly, the plurality concluded that Harmelin’s life term without parole was not “grossly disproportionate” to the crime for which he was convicted. In the instant case, Hickey was a third time offender, accountable for a violation involving 177.8 grams of cocaine base. Applying the narrow proportionality principle of Harmelin, this court concludes that Hickey’s mandatory life sentence without parole was" }, { "docid": "21561528", "title": "", "text": "the conspiracy charge, to run concurrently, plus 60 months for one gun charge and an enhanced 120 month sentence for the ‘second or subsequent’ gun conviction, both to run consecutively following the service of the first 200 months. In addition, Abreu was sentenced to 18 months on the failure to appear charge, to run concurrently with the other sentences. Abreu now appeals his conviction and sentencing and raises eleven issues for our review. We consider each in turn. I. Does Appellant’s Conviction Under 21 U.S.C. § 841(a)(1) Violate the Eighth Amendment? Appellant maintains that the mandatory minimum punishment prescribed by 21 U.S.C. § 841, violates his rights under the Eighth and Fourteenth Amendments. Specifically, appellant contends that (1) the mandatory minimum sentence deprived him of “individualized” sentencing, and (2) the mandatory minimum sentence is so grossly disproportionate as to be cruel and unusual under the test set forth in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). We find no merit to these claims. Since the filing of this appeal, the Supreme Court handed down its opinion in Harmelin v. Michigan, — U.S. —, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), which upheld a mandatory life imprisonment sentence without possibility of parole for conviction of possession of more than 650 grams of cocaine. Although the Court was split in its reasoning, it is clear from the various opinions generated in that case that mandatory sentences are permissible for non-capital punishment. Thus, Harmelin discredits appellant’s argument that his mandatory minimum sentence is unconstitutional because it deprives him of “individualized” sentencing. Turning to appellant’s proportionality argument, we likewise find no Eighth Amendment problem. Although a majority of the Court in Harmelin held that the constitution does impose a proportionality requirement on non-capital sentences, con siderable latitude is to be given to the legislature or Congress in setting sentences. The appellant is correct in asserting that “[t]he Armed Career Criminal Act calls for a mandatory minimum punishment which is greater than the maximum term imposed on many persons convicted of homicide,” Appellant’s Brief at 18. However, the Supreme" }, { "docid": "22594657", "title": "", "text": "mitigating factors related to the prior felony convictions utilized as § 841(b)(1) predicates. See Jones, 569 F.3d at 574 (rejecting argument that defendant with only one criminal-history point should not have received statutory mandatory minimum, referencing first-time felon in Harmelin). The Harmelin Court specifically rejected the defendant’s argument that a court must consider mitigating factors before impos ing a statutory mandatory minimum. Harmelin, 501 U.S. at 994-95, 111 S.Ct. 2680 (rejecting argument that the defendant’s lack of prior felonies should have mitigated against imposing statutory mandatory minimum of life without parole based on asserted need to determine individually whether punishment is appropriate under Eighth Amendment). As “[w]e have held, ... there is no constitutional right to individualized sentencing in non-capital cases.” United States v. Odeneal, 517 F.3d 406, 415 (6th Cir.2008); see also United States v. Jones, 205 Fed.Appx. 327, 336-37 (6th Cir.2006) (unpublished opinion) (rejecting argument that § 841(b)(1)(A) creates grossly disproportionate sentences because the statute does not distinguish between prior possession-only felonies and more serious trafficking felonies), cert. denied, 551 U.S. 1109, 127 S.Ct. 2926, 168 L.Ed.2d 254 (2007). “[Tjhere is no doubt that Congress has authority to limit judicial discretion, or even eliminate it altogether, by imposing mandatory minimum sentences.” United States v. Wimbley, 553 F.3d 455, 462-63 (6th Cir.), cert. denied, - U.S. -, 129 S.Ct. 2414, 173 L.Ed.2d 1320 (2009). Under Hill and Harmelin, we must conclude that the district court did not violate the Eighth Amendment in rejecting the arguments Graham advanced in his motion to disregard life sentence. However, the particular circumstance of Graham’s earliest-in-time prior felony drug conviction presents a separate question. 2. § 841(b)(1) “Prior Convictions for a Felony Drug Offense”: Committed as a Juvenile, but Convicted and Sentenced as an Adult Graham has only two prior felony drug convictions, both of which the district court counted as triggering offenses for the § 841(b)(1)(A)(iii) mandatory life sentence. In 1995, when Graham was seventeen, he pleaded guilty under an indictment charging him as an adult for two counts of aggravated drug trafficking under Ohio law, and he was sentenced (in 1996, but" } ]

[ { "docid": "22651367", "title": "", "text": "courts of law in terms that have a familiar ring to those trained in the legal process. The judicial power of the United States defined by Art. Ill is not an unconditioned authority to determine the constitutionality of legislative or executive acts. The power to declare the rights of individuals and to measure the authority of governments, this Court said 90 years ago, “is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy.” Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 (1892). Otherwise, the power “is not judicial . . . in the sense in which judicial power is granted by the Constitution to the courts of the United States.” United States v. Ferreira, 13 How. 40, 48 (1852). As an incident to the elaboration of this bedrock requirement, this Court has always required that a litigant have “standing” to challenge the action sought to be adjudicated in the lawsuit. The term “standing” subsumes a blend of constitutional requirements and prudential considerations, see Warth v. Seldin, 422 U. S. 490, 498 (1975), and it has not always been clear in the opinions of this Court whether particular features of the “standing” requirement have been required by Art. Ill ex proprio vigore, or whether they are requirements that the Court itself has erected and which were not compelled by the language of the Constitution. See Flast v. Cohen, supra, at 97. A recent line of decisions, however, has resolved that ambiguity, at least to the following extent: at an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 99 (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26, 38, 41 (1976). In this manner does" } ]

[ { "docid": "17099149", "title": "", "text": "standing may not litigate as suitors in the courts of the United States. Article III, which is every bit as important in its circumscription of the judicial power of the United States as in its granting of that power, is not merely a troublesome hurdle to be overcome if possible so as to reach the “merits” of a lawsuit which a party desires to have adjudicated; it is a part of the basic charter promulgated by the Framers of the Constitution at Philadelphia in 1787, a charter which created a general government, provided for the interaction between that government and the governments of the several States, and was later amended so as to either enhance or limit its authority with respect to both the States and individuals. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475-76, 102 S.Ct. 752, 760-61, 70 L.Ed.2d 700 (1982). As delineated by the court in Valley Forge, the minimum constitutional requirements of standing are as follows: [A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of putatively illegal conduct of the defendant.”, Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1607, 60 L.Ed.2d 66] (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976). 454 U.S. at 472, 102 S.Ct. at 758. If a plaintiff fails to meet the minimum constitutional requirements for standing, the district court must dismiss the action for failure of subject matter jurisdiction. Hope, Inc. v. County of DuPage, Illinois, 738 F.2d 797, 804 (7th Cir.1984); see also, People Organized for Welfare and Employment Rights v. Thompson, 727 F.2d 167, 169 (7th Cir.1984). And standing does not necessarily flow from the validity of the plaintiffs contention on the merits, rather the focus is" }, { "docid": "12455102", "title": "", "text": "court of the United States to declare its legal rights, and has couched that request for forms of relief historically associated with courts of law in terms that have a familiar ring to those trained in the legal process. The judicial power of the United States defined by Art III is not an unconditioned authority to determine the constitutionality of legislative or executive acts. The power to declare the rights of individuals and to measure the authority of governments, this Court said 90 years ago, “is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy.” Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345 [12 S.Ct. 400, 402, 36 L.Ed. 176] (1892). Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471, 102 S.Ct. 752, 757, 70 L.Ed.2d 700 (1982). If there is no case or controversy, this court lacks subject matter jurisdiction to hear this appeal even though the parties agreed below that the case was ripe for adjudication; agreement of the parties cannot establish subject matter jurisdiction. In re Rini, 782 F.2d 603, 609 n. 10 (6th Cir.1986). The Supreme Court, discussing the limits of article III power, has stated: [A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1608, 60 L.Ed.2d 66] (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976). Valley Forge Christian College, 454 U.S. at 472, 102 S.Ct. at 758. Thus, the plaintiff, in the instant case, must show that (1) it has suffered actual or threatened injury, which it clearly has through the quashing of the subpoenas," }, { "docid": "327031", "title": "", "text": "of judicial action.” Valley Forge Christian College v. Americans United For Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). See also, id. at 486, 102 S.Ct. at 766 (“[Sjtanding is not measured by the intensity of the litigant’s interest or the fervor of his advocacy.”). It is the constitutional component of standing, however, that is indispensable: Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758. See also, Allen, 468 U.S. at 751, 104 S.Ct. at 3324 (holding that standing “has a core component derived directly from the Constitution.”). [A]t an irreducible minimum, Art. Ill requires that the party who invokes the court’s authority “to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision,” Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. [1917,] 1924, 1925, 48 L.Ed.2d 450 (1976). The latter two prongs of the constitutional component of standing, “fairly traceable” and “redressability,” initially were considered to be “two facets of a single causation requirement.” C. Wright, Law of Federal Courts § 13, p. 68, n. 43 (4th ed. 1983). In Allen v. Wright, however, the Supreme Court clarified the importance of separate inquiry regarding each prong. The first examines the nexus between the conduct and the injury, while the second focuses on the connection between the injury and the relief sought. See Allen, 468 U.S. at 753, 104 S.Ct. at 3325, n. 19. Separate analysis of each is necessary, as both components are required for the litigant to attain standing. In the case before us, we conclude that the appellant fails to demonstrate that the challenged act caused her alleged injury. Jones’ sole defense to the offset action taken by the Department of Education is the statute of limitations. Jones’" }, { "docid": "1989144", "title": "", "text": "was later amended so as to either enhance or limit its authority with respect to both States and individuals.” Valley Forge Christian College v. Americans United, 454 U.S. 464, 475-76, 102 S.Ct. 752, 760-761, 70 L.Ed.2d 700 (1982) (footnote omitted). As delineated by the Court in Valley Forge, the minimum constitutional requirements of standing are as follows: “[A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,’ Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, [99 S.Ct. 1601, 1608, 60 L.Ed.2d 66] (1979), and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision,’ Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, [96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976).” 454 U.S. at 472, 102 S.Ct. at 758 (footnote omitted). See also Planned Parenthood Ass’n. of Chicago v. Kempiners, 700 F.2d 1115, 1131 (7th Cir.1983) (Eschbach, J.). If a plaintiff fails to meet the minimum constitutional requirements for standing, as the preceding quotations establish, the district court must dismiss the action for failure of subject matter jurisdiction. See, e.g., People Organ, for Welfare & Emp. Rights v. Thompson, 727 F.2d 167, 169 (7th Cir.1984). Furthermore, standing does not necessarily flow from the validity of the plaintiff’s contention on the merits, rather the focus is on the plaintiff and whether he or she has alleged and proven facts necessary to meet the minimum constitutional requirements of standing. Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. at 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); South East Lake View, Etc. v. Dept. of Housing, 685 F.2d 1027, 1034 (7th Cir.1982). With these general principles as background, we now turn to the question of whether the named individual low and moderate income plaintiffs, and HOPE, Inc. have standing in the present action. We treat the question as to standing of the plaintiff class separately from" }, { "docid": "7873501", "title": "", "text": "(1982). [A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision.” Id. (citations omitted) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979), and Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976)). Thus, a plaintiff who has not been prosecuted under a criminal statute does not normally have standing to challenge the statute’s constitutionality. See Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971) (finding that plaintiffs who had neither been prosecuted nor specifically threatened with prosecution did not have standing). Standing requirements to challenge speech restrictions, however, are less strict. “[I]n the First Amendment context, [l]itigants ... are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Virginia v. Ameri can Booksellers Assoc., Inc., 484 U.S. 383, 392-93, 108 S.Ct. 636, 643, 98 L.Ed.2d 782 (1988) (internal quotations omitted); see also Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956-57, 104 S.Ct. 2839, 2846-47, 81 L.Ed.2d 786 (1984); Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). We conclude that Cheffer has standing to challenge the restrictions placed on her free speech by the Amended Permanent Injunction. B. Neither does the abstention doctrine block Cheffer’s suit. The Supreme Court has directed that federal courts should not intervene in ongoing state proceedings “when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” See Younger v. Harris, 401 U.S. 37," }, { "docid": "6454898", "title": "", "text": "Uhl, 239 U.S. 3, 36 S.Ct. 2, 60 L.Ed. 114 (1915). This court does not, by this decision, intend to widen the narrow holding in Smith but rather finds that the present case fits within that narrow exception. STANDING The defendants assert that the organizational plaintiffs lack standing because they have not established a cognizable injury nor have they established the causation elements required to find a case or controversy. To establish standing, “at an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,’ ” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979)), “and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision.’ ” Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758 (quoting Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1926, 48 L.Ed.2d 450 (1976) (footnote omitted)). The exercise of judicial authority is thus limited to litigants who are able to demonstrate “injury in fact” resulting from the complained of behavior. Valley Forge, 454 U.S. at 473, 102 S.Ct. at 759. The Supreme Court has also recognized that, beyond constitutional requirements, there exist certain prudential principles that require the court to refrain from adjudicating “ ‘abstract questions of wide public significance’ which amount to ‘generalized grievances,’ pervasively shared and most appropriately addressed in the representative branches.” Valley Forge, 454 U.S. at 475, 102 S.Ct. at 760 (quoting Warth v. Seldin, 422 U.S. 490, 499-500, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (footnote omitted)). Finally, the plaintiffs’ complaint must fall within “the zone of interest to be protected or regulated by the statute or constitutional guarantee in question.” Valley Forge, 454 U.S. at 475," }, { "docid": "18679498", "title": "", "text": "for attorneys fees under 42 U.S.C. § 1988. This statute allows to the prevailing party a reasonable attorneys fee. Since the Chapter of Civil Rights is addressed to assuring a forum to persons who would not normally feel they could risk the costs of litigation, the courts have supported the spirit of the statute by requiring that attorneys fees to a defend- ant shall be allowed only if the action is frivolous or malicious. Bowers v. Kraft Foods Corp., 606 F.2d 816 (8th Cir.1979). This court after reviewing the evidence concludes that the action was not frivolous or malicious. Therefore the motion for attorneys fees is DENIED. Let judgment be entered accordingly. . \"[A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,’ Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1607, 60 L.Ed.2d 66] (1979), and that the injury ‘fairly can be traced to the challenged action’ and 'is likely to be redressed by a favorable decision,' Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976).” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (footnote omitted)." }, { "docid": "12455103", "title": "", "text": "case was ripe for adjudication; agreement of the parties cannot establish subject matter jurisdiction. In re Rini, 782 F.2d 603, 609 n. 10 (6th Cir.1986). The Supreme Court, discussing the limits of article III power, has stated: [A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1608, 60 L.Ed.2d 66] (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976). Valley Forge Christian College, 454 U.S. at 472, 102 S.Ct. at 758. Thus, the plaintiff, in the instant case, must show that (1) it has suffered actual or threatened injury, which it clearly has through the quashing of the subpoenas, and (2) the injury was the result of an act of the defendant. “The court may not act to redress injury ‘that results from the independent action of some third party not before the court.’ ” Toth v. United Auto. Aero. & Agr. Implement Workers, 743 F.2d 398, 404 (6th Cir.1984) (quoting Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 42, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976)). It is the second element which the plaintiff fails to satisfy. Plaintiff’s injury did not result from any action taken by the defendant, the Attorney General of the United States. Rather, it was the state trial court judge who quashed the subpoenas and enforced the federal statute, 18 U.S.C. § 2515. The Attorney General has not threatened plaintiff with any penalty for attempting to use the taped conversations which are the subject of this litigation. Plaintiff’s remedy is to appeal the state court’s decision through the state court system. Because defendant herein has not caused the injury suffered by the plaintiff, this court is" }, { "docid": "22301693", "title": "", "text": "minimum, Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976). Even if the defendants have been guilty of patient abuse, the plaintiffs have not suffered any actual injury, only the patient has suffered injury; even if the plaintiffs were to recover monetary damages, the injury to the patients, if any, would not have been “redressed.” If it had been the purpose of the plaintiffs to redress the patients’ rights, they would have sought some form of injunctive relief in favor of the patients, as the plaintiffs did in Singleton and Bolton; the only relief the plaintiffs have sought, as we have said, is monetary relief for themselves. We have no doubt of the correctness of the district judge’s decision to dismiss these claims of the plaintiffs. VII. Finally, the plaintiffs who, after trial before a jury, suffered an unfavorable verdict at the hands of the jury, have raised an odd objection to the verdict form used by the district judge. Prior to trial, the district court had bifurcated the trial by separating the issue of liability and the issue of damages. The trial proceeded on the issue of liability. At the conclusion of the trial the plaintiffs proposed that the district judge should withhold “the issue of the defense of good faith immunity from the jury until the damage portion of the trial.” The district judge, however, determined, in his discretion, to submit the cause to the jury on a general verdict form. This was a matter within the district judge’s discretion and we find no error. CONCLUSION We have examined all the exceptions raised" }, { "docid": "11873115", "title": "", "text": "672 F.2d 1145, 1150 (3d Cir. 1982). The second question focuses not on the identity of the parties but on whether the legality of HUD’s action is subject to judicial review, i.e. whether there exists a cause of action on the parties’ behalf. See Society Hill Civic Association v. Harris, 632 F.2d 1045, 1055 (3d Cir. 1980). We shall evaluate the claims raised by plaintiffs which are pertinent to these questions. A. Objections that those challenging the action of federal administrative agencies lack standing are evaluated by reference to two queries: (1) the constitutional one — “whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise,” and (2) prudential considerations, including, “whether the interest sought to be protected by the complainant is arguably within the zone of interest to be protected or regulated by the statute or constitutional guarantee in question.” Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). The requirement that the plaintiffs have personally suffered some injury is grounded in the constitutional limitation of the power of federal courts to “Cases” and “Controversies.” U.S.Const. art. II, § 2; see Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.,- U.S.-, -, 102 S.Ct. 752, 757, 70 L.Ed.2d 700 (1982); Association of Data Processing Service Organizations, Inc. v. Camp, supra, 397 U.S. at 151, 90 S.Ct. at 829. The nature of constitutional injury was recently restated by the Court: [A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,’ Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1607, 60 L.Ed.2d 66] (1979), and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision,’ Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925, 48" }, { "docid": "15268696", "title": "", "text": "413 (W.D.Va.) (“Calculations of B/C [benefit/cost] ratios under the Flood Control Act and under NEPA are different.”), aff'd, 484 F.2d 453 (4th Cir. 1973). . The district court concluded, however, that the benefit-cost ratio was still acceptable under 33 U.S.C. § 701a, even in the light of the project modification. 500 F.Supp. at 1117. . 500 F.Supp. at 1117. In addition, the district court held that the plaintiffs had “no standing to sue on the basis of the Corps failing to get adequate assurances of cooperation.” Id. We disagree with this holding because the plaintiff-landowners will be injured if the project is completed as modified instead of completed as originally planned. Although their land will benefit from flood protection under the modified project, their land will not be drained as it would have been under the original project. As the Supreme Court recently stated, at an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1608, 60 L.Ed.2d 66] (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925-26, 48 L.Ed.2d 450] (1976). Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., - U.S. -, -, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). In Akers v. Resor, 339 F.Supp. 1375, 1378 (W.D.Tenn.1972), the court held that the plaintiffs, members of an environmental group, had no standing to challenge § 701c assurances because the plaintiffs sought to protect ecology and that interest “is not arguably within the zone of the interest intended to be protected by this statutory provision.” The interests of the landowners in this case, however, are within the zone of interests protected by the statute; their interest is the assured completion of the" }, { "docid": "18006367", "title": "", "text": "the Sherman Act. Both the district court and this court denied motions to stay the judgment of dismissal. II. We agree with the district court that the plaintiffs lack standing under the relevant statute, the MCA. The plaintiffs are not banks and do not function as check processing or clearing centers. They are private air couriers which contract with banks other than Federal Reserve Banks that perform cheek collection services. None of the banks which utilize the transportation services of the plaintiffs joined in bringing this action. A. The requirement- that a plaintiff must have “standing” in order to bring an action in a federal court has been long recognized, and has been the subject of many decisions. The most recent Supreme Court statement on the subject is contained in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). In Valley Forge the court noted that standing involves both constitutional (“case” or “controversy”) requirements and prudential considerations. After discussing some ambiguity concerning the nature of the standing requirement arising from earlier decisions, the Court identified the “irreducible minimum” constitutional requirement as follows: A recent line of decisions, however, has resolved that ambiguity, at least to the following extent: at an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some ae tual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1607, 60 L.Ed.2d 66] (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976). In this manner does Art. Ill limit the federal judicial power “to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution" }, { "docid": "17099150", "title": "", "text": "Ill requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of putatively illegal conduct of the defendant.”, Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1607, 60 L.Ed.2d 66] (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976). 454 U.S. at 472, 102 S.Ct. at 758. If a plaintiff fails to meet the minimum constitutional requirements for standing, the district court must dismiss the action for failure of subject matter jurisdiction. Hope, Inc. v. County of DuPage, Illinois, 738 F.2d 797, 804 (7th Cir.1984); see also, People Organized for Welfare and Employment Rights v. Thompson, 727 F.2d 167, 169 (7th Cir.1984). And standing does not necessarily flow from the validity of the plaintiffs contention on the merits, rather the focus is on the plaintiff and whether he or she has alleged and proven facts necessary to meet the minimum constitutional requirements of standing. Hope, 738 F.2d at 804. Stated another way, “[t]he first element of the standing inquiry that [a plaintiff] ‘must satisfy in this Court is the- “ease” or “controversy” requirement of Article III of the United States Constitution.’ ... The relevant inquiry for a case or controversy is to determine whether a plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision.” Penny Saver Publications, Inc. v. Village of Hazel Crest, 905 F.2d 150, 154 (7th Cir.1990). In the instant case, the plaintiffs have met the Article III standing requirement, i.e., injury in fact. They have demonstrated loss of the opportunity to, presumably, make money, by making migrant housing conditions so attractive to certain migrant workers that those migrant workers would choose to work for the plaintiffs in the operation of their pickle fields. In some instances, however, it is not enough that a plaintiff have suffered" }, { "docid": "7873500", "title": "", "text": "front of the clinic. But by extending the injunction to nonparties and by attaching criminal penalties to activities otherwise protected by the Constitution, Judge McGregor crafted a law that seems to apply to Cheffer, who is neither a party nor an agent of any party. It is this unusual characteristic of the injunction that seems to have misled the district court. We refuse to prefer form over substance; the injunction has all the attributes of a criminal statute and we will treat it accordingly. A. Although she was neither a partj to the state suit nor one of those arrested foi violating the buffer zone, Cheffer does nol lack standing to bring this case. A plaintifi in federal court must satisfy the “ease oi controversy” requirement of Article III ol the Constitution by showing that she has suffered an injury-in-fact that would be corrected by favorable decision in the lawsuit. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471-72, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). [A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision.” Id. (citations omitted) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979), and Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976)). Thus, a plaintiff who has not been prosecuted under a criminal statute does not normally have standing to challenge the statute’s constitutionality. See Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971) (finding that plaintiffs who had neither been prosecuted nor specifically threatened with prosecution did not have standing). Standing requirements to challenge speech restrictions, however, are less strict. “[I]n the First Amendment context, [l]itigants ... are" }, { "docid": "13699232", "title": "", "text": "Judge Bork’s second argument was also, we think, answered in Riegle, but he suggests that Riegle’s analysis was implicitly rejected by the Supreme Court in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). There the Court provided its most recent formulation of the standing requirement in stating that: at an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1608, 60 L.Ed.2d 66] (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976). 454 U.S. at 472, 102 S.Ct. at 758. Immediately following this summary, the Court explained the standing doctrine’s function: “In this manner does Art. Ill limit the federal judicial power ‘to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.’ Flast v. Cohen, [392 U.S. 83 (1968)] at 97 [88 S.Ct. 1942 at 1951, 20 L.Ed.2d 947].” Id. (emphasis added). Judge Bork contends that the Court’s use of the phrase “separated powers,” taken together with language from other opinions over the past decade, signals that we should consider separation-of-powers issues as part of our determination whether appellants have standing. But we decline to place as much weight on the Supreme Court’s language as Judge Bork does. If the Court had meant to expand its standing doctrines to make room for a whole set of analytically-unrelated theories about the roles of the separate branches of government, it could have said so. Instead, we should continue to rely on previous expressions by the Supreme Court that it does not mean" }, { "docid": "20343074", "title": "", "text": "the Reorganization Act of 1977 by claiming that Allstate was not injured by that Act, even if it is unconstitutional. It is beyond dispute that every defendant has standing to question the legal authority of the plaintiff to sue. The EEOC has attempted to turn Allstate’s defense into an offensive weapon by questioning AJlstate’s standing to assert the alleged constitutional infirmity as a defense. Clearly Allstate has standing to challenge the plaintiff’s legal right to sue, but assuming arguendo, that standing is not self-evident in this case this Court will address the merits of the EEOC’s standing argument. The EEOC claims that Allstate has no injury such as may satisfy the standing requirements of Article III of the Constitution. The Article III requirement of standing was recently summarized by the Supreme Court in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) as follows: At an irreducible minimum, Art. Ill requires the party who invokes the Court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1607, 60 L.Ed.2d 66] (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision”. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976). In this manner does Art. Ill limit the federal judicial power “to those disputes which confine Federal Courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.” (citations omitted). Allstate has shown that it has personally suffered actual injury in that it has been subjected to a law suit filed pursuant to an unconstitutional statute. There is no doubt that a favorable decision by this Court would redress the injury of which Allstate complains. The identification" }, { "docid": "16333889", "title": "", "text": "endeavor.” National Wildlife Federation v. Hodel, 839 F.2d 694, 703 (D.C.Cir.1988). The starting point in this case is § 10 of the Administrative Procedure Act, 5 U.S.C. § 702, which instructs us that standing will be accorded parties who can show that they have been “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” The Supreme Court has been unwilling to take a narrow view of the APA’s “ ‘generous review provisions,’ ” Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 156, 90 S.Ct. 827, 831, 25 L.Ed.2d 184 (1970) (quoting Shaughnessy v. Pedreiro, 349 U.S. 48, 51, 75 S.Ct. 591, 594, 99 L.Ed. 868 (1955)), and it has interpreted the provision so as to effectuate the APA’s broadly remedial purpose. See Clarke v. Securities Industry Ass’n, 479 U.S. 388, 395, 107 S.Ct. 750, 755, 93 L.Ed.2d 757 (1987). The Court has further outlined the (necessarily interrelated) factors comprising the constitutional dimensions of the standing requirement: [A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority [1] to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” and that the injury [2] “fairly can be traced to the challenged action” and [3] “is likely to be redressed by a favorable decision.” Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979), and Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1979)). In this case, the causal chain between the challenged action and the posited injury is not seriously attenuated, and thus the latter two issues identified by the Valley Forge Court are not at issue. The organizations have alleged that the FTC’s decision to exempt utilitarian items from the broad warning requirements of the Act will lead smokeless" }, { "docid": "22301692", "title": "", "text": "one. 428 U.S. at 119 n. 7, 96 S.Ct. at 2876 n. 7. Further, Justice Stevens, whose vote was essential to the favorable resolution of the standing issue (without his vote the decision would have been 4-4), stated separately and differently his ground for sustaining jurisdiction: In this case, (1) the plaintiff-physicians have a financial stake in the outcome of the litigation, and (2) they claim that the statute impairs their own constitutional rights. They therefore clearly have standing to bring this action. 428 U.S. at 121, 96 S.Ct. at 2877 (Stevens, J., concurring in part). The plaintiffs in this case cannot qualify under the exceptional standard stated by Justice Blackmun or the rationale expressed by Justice Stevens in Singleton. Their claim of standing is foreclosed by this language of the Supreme Court later in Valley Forge Christian College v. Americans United, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (footnote omitted): A recent line of decisions, however, has resolved that ambiguity, at least to the following extent: at an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976). Even if the defendants have been guilty of patient abuse, the plaintiffs have not suffered any actual injury, only the patient has suffered injury; even if the plaintiffs were to recover monetary damages, the injury to the patients, if any, would not have been “redressed.” If it had been the purpose of the plaintiffs to redress the patients’ rights, they would have sought some form of injunctive relief in favor of the patients, as the plaintiffs did in Singleton and" }, { "docid": "7396977", "title": "", "text": "futile nor would it be an unnecessary use of administrative resources. Furthermore, without further analysis of the merits, it appears that plaintiff may lack the requisite standing to challenge the regulation in that Blue Cross did not invoke subsection (c)(2), the alleged unconstitutional subsection, when making adjustments to the plaintiff’s cost report. As the United States Supreme Court stated in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982): [A]t an irreduceable minimum, Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608 [60 L.Ed.2d 66], ... (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925 [48 L.Ed.2d 450] ... (1976). 454 U.S. at 472, 102 S.Ct. at 758. Clearly, standing requires that the “party seeking review must allege facts showing that he is himself adversely affected.” Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972). In light of the finding that this Court does not have jurisdiction to consider the merits of plaintiff’s challenge to 42 C.F.R. § 405.419, the Court does not base its determination on the ground that the plaintiff lacks standing. CONCLUSION For the reasons discussed in this Memorandum, this Court does not have jurisdiction to consider the plaintiff’s challenge to HCFAR 84-1 because the issue is moot; the Court does not have jurisdiction to consider the no-retroactive relief rule because the issue is not ripe for adjudication; and the Court does not have jurisdiction to consider the interest expense regulation because the plaintiff has not exhausted its administrative remedies before the PRRB and the Secretary. In view of the fact that the Court will dismiss" }, { "docid": "18006368", "title": "", "text": "ambiguity concerning the nature of the standing requirement arising from earlier decisions, the Court identified the “irreducible minimum” constitutional requirement as follows: A recent line of decisions, however, has resolved that ambiguity, at least to the following extent: at an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some ae tual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1607, 60 L.Ed.2d 66] (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976). In this manner does Art. Ill limit the federal judicial power “to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.” Flast v. Cohen, supra [392 U.S. 83], at 97 [88 S.Ct. 1942, at 1951, 20 L.Ed.2d 947 (1968)]. 454 U.S. at 472, 102 S.Ct. at 758 (footnote omitted). The Court also outlined the governing prudential considerations: Beyond the constitutional requirements, the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing. Thus, this Court has held that “the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. [490], at 499 [95 S.Ct. 2197, at 2205, 45 L.Ed.2d 343]. In addition even when the plaintiff has alleged redressable injury sufficient to meet the requirements of Art. Ill, the Court has refrained from adjudicating “abstract questions of wide public significance” which amount to “generalized grievances,” pervasively shared and most appropriately addressed in the representative branches. Id., at 499-500 [95 S.Ct. at 2205], Finally, the Court has required that the plaintiff’s complaint fall within" } ]

[ { "docid": "22673777", "title": "", "text": "and rules. 28 U. S. C. §2254 Rule 11; see Fed. Rule Civ. Proc. 81(a)(2). The relevant provisions of the AEBPA-amended habeas statutes, 28 U. S. C. §§ 2244(b)(lM3), impose three requirements on second or successive habeas petitions: First, any claim that has already been adjudicated in a previous petition must be dismissed. § 2244(b)(1). Second, any claim that has not' already been adjudicated must be dismissed unless it relies on either a new and retroactive rule of constitutional law or new facts showing a high probability of actual innocence. § 2244(b)(2). Third, before the district court may accept a successive petition for filing, the court of appeals must determine that it presents a claim not previously raised that is sufficient to meet §2244(b)(2)’s new-rule or actual-innocence provisions. § 2244(b)(3). We proceed to consider whether these provisions limit the application of Rule 60(b) to the present case. A “As a textual matter, § 2244(b) applies only where the court acts pursuant to a prisoner’s ‘application’ ” for a writ of habeas corpus. Calderon v. Thompson, 523 U. S. 538, 554 (1998). We therefore must decide whether a Rule 60(b) motion filed by a habeas petitioner is a “habeas corpus application” as the statute uses that term. Under § 2244(b), the first step of analysis is to determine whether a “claim presented in a second or successive habeas corpus application” was also “presented in a prior application.” If so, the claim must be dismissed; if not, the analysis proceeds to whether the claim satisfies one of two narrow exceptions. In either event, it is clear that for purposes of § 2244(b) an “application” for habeas relief is a filing that contains one or more “claims.” That definition is consistent with the use of the term “application” in the other habeas statutes in chapter 153 of title 28. See, e. g., Woodford v. Garceau, 538 U. S. 202, 207 (2003) (for purposes of § 2254(d), an application for habeas corpus relief is a filing that seeks “an adjudication on the merits of the petitioner’s claims”). These statutes, and our own decisions, make" } ]

[ { "docid": "13565460", "title": "", "text": "for resentencing; (4) in 1998, the trial court resentenced Burton and entered a new judgment; (5) in 1998, Burton appealed the new sentence, which was affirmed in 2001; (6) also in 1998, while the appeal was pending, Burton filed a § 2254 petition seeking to vacate his conviction, and the district court denied it; (7) finally, in 2002, after his 1998 sentence was affirmed on appeal, Burton filed a second § 2254 petition seeking to vacate his 1998 sentence (but not the underlying conviction). Burton, 549 U.S. at 150-52, 127 S.Ct. at 794-96. The Supreme Court held that Burton’s 2002 habeas petition was second or successive because when Burton filed the 1998 petition, he was \"being held in custody pursuant to the 1998 judgment,” which was the same judgment he was being held under when he filed the 2002 petition. Id. at 153, 127 S.Ct. at 796. Burton argued that the 1998 and 2002 petitions challenged different judgments because his 1998 petition identified the pertinent judgment as the 1994 judgment, while the 2002 petition identified the 1998 judgment. The Court rejected this contention because the \"1998 judgment ... had been entered nine months before Burton filed his first petition” and that judgment, “the same one challenged in the subsequent 2002 petition, was the judgment pursuant to which Burton was being detained.” Id. at 156, 127 S.Ct. at 798. Alternatively, Burton argued that had he waited to file the 1998 § 2254 petition challenging his conviction, he riskéd losing the chance to challenge the conviction at all under AEDPA's one-year statute of limitations. Again, the Court was not persuaded. The Court reasoned that this misread AEDPA’s statute of limitations, which states that the limitations period for a \"person in custody pursuant to the judgment of a state court” shall run from the date on which the judgment \"became final by the conclusion of direct review or the expiration of the time for seeking such review,” § 2244(d)(1)(A). Id, at 156, 127 S.Ct. at 799. Because “[f]inal judgment in a criminal case means sentence” and \"[tjhe sentence is the judgment,” the Court" }, { "docid": "22354345", "title": "", "text": "is filed after an initial petition was dismissed without adjudication on the merits for failure to exhaust state remedies is not a ‘second or successive’ petition” (emphasis added)). Burton’s case is quite different — his first petition was not subject to dismissal as containing unexhausted claims, and in fact was adjudicated on the merits. Moving beyond the ground relied upon by the Ninth Circuit, Burton argues that his 1998 and 2002 petitions challenged different judgments. He notes that his 1998 petition identified the pertinent judgment as the 1994 judgment, App. 34, while the 2002 petition challenged the sentence imposed in the 1998 judgment. The 1998 judgment, however, had been entered nine months before Burton filed his first petition. That judgment, the same one challenged in the subsequent 2002 petition, was the judgment pursuant to which Burton was being detained. Unlike In re Taylor, 171 F. 3d 185 (CA4 1999), cited by Burton, there was no new judgment intervening between the two habeas petitions. In his 1998 petition, Burton specifically described his unexhausted sentencing claims as claims “as to the judgment under attack,” App. 40, belying any notion that those claims arose from a judgment distinct from the one challenged in 1998. Burton finally contends that had he not filed the 1998 petition when he did, and instead waited until state review of his sentencing claims was complete, he risked losing the opportunity to challenge his conviction in federal court due to AEDPA’s 1-year statute of limitations. See § 2244(d)(1). But this argument misreads AEDPA, which states that the limitations period applicable to “a person in custody pursuant to the judgment of a State court” shall run from, as relevant here, “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. ” § 2244(d)(1)(A). “Final judgment in a criminal case means sentence. The sentence is the judgment.” Berman v. United States, 302 U. S. 211, 212 (1937). Accordingly, Burton’s limitations period did not begin until both his conviction and sentence “became final by the conclusion of direct" }, { "docid": "22354346", "title": "", "text": "claims “as to the judgment under attack,” App. 40, belying any notion that those claims arose from a judgment distinct from the one challenged in 1998. Burton finally contends that had he not filed the 1998 petition when he did, and instead waited until state review of his sentencing claims was complete, he risked losing the opportunity to challenge his conviction in federal court due to AEDPA’s 1-year statute of limitations. See § 2244(d)(1). But this argument misreads AEDPA, which states that the limitations period applicable to “a person in custody pursuant to the judgment of a State court” shall run from, as relevant here, “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. ” § 2244(d)(1)(A). “Final judgment in a criminal case means sentence. The sentence is the judgment.” Berman v. United States, 302 U. S. 211, 212 (1937). Accordingly, Burton’s limitations period did not begin until both his conviction and sentence “became final by the conclusion of direct review or the expiration of the time for seeking such review” — which occurred well after Burton filed his 1998 petition. Burton argues in rebuttal that this reasoning would necessarily mean the District Court lacked jurisdiction to consider the 1998 petition, but he is mistaken. Section 2254(a) states that a district court “shall entertain” a habeas petition “in behalf of a person in custody pursuant to the judgment of a State court.” When he filed the 1998 petition, Burton assuredly was “in custody pursuant to the judgment of a State court” — even if, at that point, the 1998 judgment was not final for purposes of triggering AEDPA’s statute of limitations. The long and short of it is that Burton neither sought nor received authorization from the Court of Appeals before filing his 2002 petition, a “second or successive” petition challenging his custody, and so the District Court was without jurisdiction to entertain it. The judgment of the Court of Appeals for the Ninth Circuit is therefore vacated, and the case is remanded with instructions" }, { "docid": "7291345", "title": "", "text": "(1963). After this Court interpreted the law to permit dismissal of “abusive” claims— as distinguished from “successive” claims, see ibid.— Congress codified restrictions on both types of claims in § 2244(b), but still without using the phrase “second or successive.” See § 2244(b) (1964 ed., Supp. IV) (providing rules governing applications filed by state as well as federal prisoners). It was not until 1996 that AEDPA incorporated the phrase “second or successive” into § 2244(b). In light of this complex history of the phrase “second or successive,” we must rely upon the current text to determine when the phrase applies, rather than pre-AEDPA precedents or superseded statutory formulations. C Nor do our posi-AEDPA cases contradict our approach. Only one, Burton v. Stewart, 549 U. S. 147 (2007) (per curiam), comes close to addressing the threshold question whether an application is “second or successive” if it challenges a new judgment. And that case confirms that the existence of a new judgment is dispositive. In Burton, the petitioner had been convicted and sentenced in state court in 1994. See id., at 149. He successfully moved for resentencing based on vacatur of an unrelated prior conviction. Id., at 150. The state appellate court affirmed the conviction but remanded for a second resentencing. Ibid. In March 1998, the trial court entered an amended judgment and new sentence. Id., at 151. In December 1998, with state review of his new sentence still pending, the petitioner filed a §2254 application challenging his 1994 conviction. The District Court denied it on the merits, the Court of Appeals affirmed, and we denied certiorari. Ibid. In 2002, after exhausting his state sentencing appeal, the petitioner filed a §2254 petition challenging only his 1998 sentence. The District Court denied relief on the merits, and the Court of Appeals affirmed. We reversed, holding that the petition challenging the sentence should have been dismissed as an unauthorized “second or successive” application. Id., at 153; see § 2244(b)(3)(A). We rejected the petitioner’s argument “that his 1998 and 2002 petitions challenged different judgments.” Id., at 155; see id., at 156-157. Although the petitioner had" }, { "docid": "19147039", "title": "", "text": "ineffective for failing to investigate, depose, and adequately impeach Luis Cor-rea; (2) counsel was ineffective for failing to colloquy and remove a sleeping juror pursuant to Insignares’s request; (3) counsel was ineffective for failing to object to the prosecutor’s misrepresentation of facts crucial to the issue of identification and move for mistrial after the prosecutor commented on his opinion of the evidence; and (4) cumulative error deprived Insig-nares of a fair trial. II. JURISDICTION Before addressing the merits of Insig-nares’s habeas petition, we first must decide whether the district judge had jurisdiction to decide it. Under the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, a prisoner “in custody pursuant to the judgment of a State court,” 28 U.S.C. § 2254(a), “shall move in the appropriate court of appeals for an order authorizing the district court to consider” a “second or successive” federal habeas petition. 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 152, 127 S.Ct. 793, 796, 166 L.Ed.2d 628 (2007). Subject to exceptions not present in this case, a district judge lacks jurisdiction to decide a second or successive petition filed without our authorization. Insignares did not seek permission to file a successive petition. Therefore, the district judge had jurisdiction to hear his petition only if Insignares’s application was not second or successive. Because Insignares had filed a federal habeas petition in 2007 challenging his conviction and raising the same issues as his 2011 federal habeas petition, the state argues his second petition is successive. In-signares responds that, although he filed a 2007 federal petition, the reduction of his mandatory-minimum sentence in 2009 resulted in a new judgment. He contends the 2011 federal habeas petition is his first challenge to that new judgment; consequently, it is not “second or successive.” Appellant’s Br. at 3-5. We agree with Insignares. In Magwood, the Supreme Court decided whether a habeas petition challenging a state prisoner’s sentence after intervening resentencing was “second or successive.” 561 U.S. 320, 130 S.Ct. 2788. The state prisoner in Magwood had been convicted of murder and sentenced to" }, { "docid": "22410154", "title": "", "text": "the petition that had been presented to a member of that court back to the District Court. 118 F. 3d, at 634-635. We granted certiorari, 522 U. S. 912 (1997), to resolve an apparent conflict between the Ninth Circuit and the Eleventh Circuit on this important question of federal law. See, e. g., In re Medina, 109 F. 3d 1556 (CA11 1996). Before reaching the question presented, however, we must first decide whether we have jurisdiction over this case. In AEDPA, Congress established a “gatekeeping” mechanism for the consideration of “second or successive habeas corpus applications” in the federal courts. Felker v. Turpin, 518 U. S. 651, 657 (1996); § 2244(b). An individual seeking to file a “second or successive” application must move in the appropriate court of appeals for an order directing the district court to consider his application. § 2244(b)(3)(A). The court of appeals then has 30 days to decide whether to grant the authorization to file. § 2244(b)(3)(D). A court of appeals’ decision whether to grant authorization “to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” § 2244(b)(3)(E). If the Court of Appeals in this case had granted respondent leave to file a second or successive application, then we would be without jurisdiction to consider petitioners’ petition and would have to dismiss the writ. This is not, however, what the Court of Appeals did. The Court of Appeals held that the § 2244(b) restrictions simply do not apply to respondent’s Ford claim, and that there was accordingly no need for him to apply for authorization to file a second or successive petition. We conclude today that the Court of Appeals reached the correct result in this case, and that we therefore have jurisdiction to consider petitioners’ petition. Section 2244(b) provides: “(b)(1) A claim presented in a second or successive ha-beas corpus application under section 2254 that was presented in a prior application shall be dismissed. “(2) A claim presented in a second or successive ha-beas corpus application under" }, { "docid": "13565461", "title": "", "text": "the 1998 judgment. The Court rejected this contention because the \"1998 judgment ... had been entered nine months before Burton filed his first petition” and that judgment, “the same one challenged in the subsequent 2002 petition, was the judgment pursuant to which Burton was being detained.” Id. at 156, 127 S.Ct. at 798. Alternatively, Burton argued that had he waited to file the 1998 § 2254 petition challenging his conviction, he riskéd losing the chance to challenge the conviction at all under AEDPA's one-year statute of limitations. Again, the Court was not persuaded. The Court reasoned that this misread AEDPA’s statute of limitations, which states that the limitations period for a \"person in custody pursuant to the judgment of a state court” shall run from the date on which the judgment \"became final by the conclusion of direct review or the expiration of the time for seeking such review,” § 2244(d)(1)(A). Id, at 156, 127 S.Ct. at 799. Because “[f]inal judgment in a criminal case means sentence” and \"[tjhe sentence is the judgment,” the Court concluded that the limitations period did not begin until “both the conviction and sentence” became final by the conclusion of direct review or the expiration of the time for seeking it. Id. at 156-57, 127 S.Ct. at 798-99 (citations and internal quotation marks omitted). In Burton, this occurred well after Burton filed his 1998 § 2254 petition. . In discussing Burton, we noted that the Supreme Court implied that if, in 1996 while incarcerated pursuant to the 1996 judgment, Burton had challenged his custody by only bringing claims concerning his 1994 conviction, his second habeas petition would not have been successive because it challenged his custody under a different judgment, the 1998 judgment, based on the 1994 conviction and 1998 sentence. Ferreira II, 494 F.3d at 1292. The Supreme Court adopted this reasoning in Magwood v. Patterson, — U.S. —, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010). Specifically, the Court held that where, \"unlike in Burton, there is a new judgment intervening between the two habeas petitions, an application challenging the resulting new judgment is" }, { "docid": "19350488", "title": "", "text": "custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States,” the judgment to which AEDPA refers is the underlying conviction and most recent sentence that authorizes the petitioner’s current detention. 28 U.S.C. § 2254(a). The Court implies that if, in 1996 while incarcerated pursuant to the 1996 judgment, Burton had challenged his custody by only bringing claims concerning his 1994 conviction, his second habeas petition would not have been successive because it challenged his custody under a different judgment, the 1998 judgment, based on the 1994 conviction and 1998 sentence. See id. at 796, 798. The Court rejected Burton’s argument that if he had waited to file a federal petition until the state review of the 1998 sentence was complete, he risked losing the opportunity to challenge his 1994 conviction in federal court due to AEDPA’s one-year statute of limitations, an argument RaineywouLd have supported. Id. at 798-99. The same AEDPA language the Supreme Court interpreted when it determined Burton filed an unauthorized successive petition, 28 U.S.C. § 2254, appears in the statute of limitations. 28 U.S.C. §§ 2244(d)(1), 2254(a). AEDPA’s limitations period is applicable to “a person in custody pursuant to the judgment of a State court” and runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A); see also Burton, 127 S.Ct. at 798. At the time Burton filed both of his petitions, he was imprisoned under the 1998 judgment, which was based on the 1996 conviction and the 1998 sentence. That judgment triggered AED-PA’s statute of limitations, even if the ha-beas petition included claims concerning the 1994 conviction. The Court stressed that “[f]inal judgment in a criminal case means sentence. The sentence is the judgment.” Id. (quoting Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937)). In Burton’s case, the “limitations period did not begin until both his conviction" }, { "docid": "19350486", "title": "", "text": "court entered a second amended judgment and sentence for the 1994 guilty verdicts. Id. Burton appealed the 1998 sentence. Id. On December 28, 1998, while direct review of his 1998 sentence was pending in state court, Burton filed a habeas petition in the United States District Court. Id. He sought to attack his custody by bringing claims concerning the 1994 conviction, not the 1998 sentence. The district court and the Ninth Circuit denied relief. Id. at 795-96. Three years after the 1998 habe-as petition, the Washington courts finally rejected his sentencing claims. Id. at 796. Subsequently, Burton filed a second federal habeas petition without permission from the Ninth Circuit. Id. In this petition, Burton attacked his custody by bringing claims concerning the 1998 sentence, not the 1994 conviction. Id. The Supreme Court held it was an unauthorized successive petition, and the district court lacked jurisdiction. Id. Integral to the Court’s holding was its interpretation of AEDPA. The Court emphasized that AEDPA sets out procedures that a prisoner “in custody pursuant to the judgment of a State court” must follow. Id. at 796; 28 U.S.C. § 2254(a). The Court interpreted the judgment at issue to be based on both the conviction and the sentence the petitioner is serving. In Burton’s case, the 1998 judgment and sentence together form the basis of his habeas petition: When Burton filed his first petition, the 1998 petition, he was being held in custody pursuant to the 1998 judgment, which had been entered some nine months earlier. When he filed his second petition, the 2002 petition, he was still being held in custody pursuant to the same 1998 judgment. In short, Bur-' ton twice brought claims contesting the same custody imposed by the same judgment of a state court. As a result, under AEDPA, he was required to receive authorization from the Court of Appeals before filing his second challenge. Id. at 796. Thus, when AEDPA states, “The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in" }, { "docid": "22398784", "title": "", "text": "473, 486 (2000) (citing Martinez-Villareal, supra); see also Felker v. Turpin, 518 U. S. 651, 664 (1996). The Court has declined to interpret “second or successive” as referring to all § 2254 applications filed second or successively in time, even when the later filings address a state-court judgment already challenged in a prior §2254 application. See, e. g., Slack, 529 U. S., at 487 (concluding that a second §2254 application was not “second or successive” after the petitioner’s first application, which had challenged the same state-court judgment, had been dismissed for failure to exhaust state remedies); see also id., at 486 (indicating that “pre-AEDPA law governed]” the case before it but implying that the Court would reach the same result under AEDPA); see also Martinez-Villareal, supra, at 645. Our interpretation of § 2244 in Martinez-Villareal is illustrative. There the prisoner filed his first habeas application before his execution date was set. In the first application he asserted, inter alia, that he was incompetent to be executed, citing Ford. The District Court, among other holdings, dismissed the claim as premature; and the Court of Appeals affirmed the ruling. When the State obtained a warrant for the execution, the prisoner filed, for the second time, a habeas application raising the same incompetency claim. The State argued that because the prisoner “already had one ‘fully-litigated habeas petition, the plain meaning of § 2244(b). .. requires his new petition to be treated as successive.’ ” 523 U. S., at 643. We rejected this contention. While the later filing “may have been the second time that [the prisoner] had asked the federal courts to provide relief on his Ford claim,” the Court declined to accept that there were, as a result, “two separate applications, [with] the second . . . necessarily subject to § 2244(b).” Ibid. The Court instead held that, in light of the particular circumstances presented by a Ford claim, it would treat the two filings as a single application. The petitioner “was entitled to an adjudication of all of the claims presented in his earlier, undoubtedly reviewable, application for federal habeas relief.”" }, { "docid": "1548189", "title": "", "text": "to file a second or successive habeas application. If the answer is yes, we then decide whether his habeas application is indeed second or successive, and if so, whether he has met the authorization requirements. These questions require us to address the interplay among three federal statutes set forth in Title 28 of the United States Code: §2241, §2254, and §2244. A. Is Wright Required to Seek Authorization to File a Second or Successive Habeas Application? By way of background: • Section 2241 bestows upon district courts the power to grant habeas corpus relief to a “prisoner” who “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(a), (c)(3). \" • Section 2254 mandates that district courts “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis supplied). • Section 2244(b), in turn, pertains to “application^] under section 2254” and provides, “Before a second or ■ successive application permitted by [section 2254] is filed in the district court, the applicant shall move in the • appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. §§ 2244(b)(2), (b)(3)(A). Wright contends that his claims “do[ ] not arise under [section] 2254,” but rather, “are properly brought under [section] 2241.” Movant’s Br. 1-2. Therefore, he contends that his petition is not subject to the second-or-successive authorization requirement in § 2244(b)(3). Almost every circuit has addressed some version of the broader question at play here — that is, whether convicted state prisoners’ petitions challenging the execution of a sentence are to be governed by § 2241 or § 2254. The majority view is that § 2241 habeas petitions from convicted state prisoners challenging the execution of a sentence are governed by § 2254. See, e.g., González-Fuentes v. Molina, 607 F.3d 864, 875-76 n. 9 (1st" }, { "docid": "23333242", "title": "", "text": "is denied. . Felker made clear that whatever the effect of AEDPA on a state prisoner's right to file a second or successive habeas petition in the district court, the Supreme Court’s authority to entertain original habeas petitions remained intact, though the AEDPA restrictions “certainly inform [the Court's] consideration of original habeas petitions.” 518 U.S. at 662-63, 116 S.Ct. 2333. LOKEN, Circuit Judge, dissenting. I respectfully dissent. I agree with the court that 28 U.S.C. § 2254 is the only vehicle by which a state inmate such as Jay Crouch may obtain federal habeas relief, even if his application is purportedly brought under 28 U.S.C. § 2241. See Felker v. Turpin, 518 U.S. 651, 662, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996); Preiser v. Rodriguez, 411 U.S. 475, 482-84, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Therefore, 28 U.S.C. § 2244(b) applies to Crouch’s present application. In my view, it is a second or successive application that requires authorization from this court under § 2244(b)(3). I would deny the request for authorization. In 1998, the district court denied Crouch’s first § 2254 application on the merits. That application did not raise the parole-denial claims he now seeks to raise. Section 2244(b)(2)(B) expressly addresses this situation: (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless— (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in-light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. In Greenawalt v. Stewart, 105 F.3d 1287, 1288 (9th Cir.1997), the Ninth Circuit applied the plain language of this statute in denying a second or successive application challenging the constitutionality of the manner in which appellant was to be executed. Without considering whether this claim could have been raised in the first §" }, { "docid": "22822441", "title": "", "text": "The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s ... If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. Id. at 494-95, 111 S.Ct. 1454. In large part, AEDPA codified the abuse of the writ doctrine and created a “gatekeeping” mechanism restricting the filing of second or successive habeas applications in district court. See Felker v. Turpin, 518 U.S. 651, 663-64, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996); Calderon v. U.S. Dist. Ct., 163 F.3d 530, 538 (9th Cir.1998), cert. denied, 526 U.S. 1060, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999). However, the gatekeeping provisions of AEDPA, as set forth in 28 U.S.C. § 2244, do not apply to all habeas petitions, nor are all multiple collateral attacks “second or successive.” First, the prior-appellate-review mechanism set forth in § 2244(b) requires the permission of the court of appeals before “a second or successive habeas corpus application under section 2254” may be commenced. See Valona v. United States, 138 F.3d 693, 694 (7th Cir.1998); 28 U.S.C. § 2244(b). Because § 2244(b) makes no reference to habeas petitions filed under § 2241, but rather, applies only to petitions filed pursuant to 28 U.S.C. § 2254, the prior-appellate-review provisions of § 2244(b) do not apply to habeas petitions filed under § 2241. See id. (citing Felker, 518 U.S. at 662-63, 116 S.Ct. 2333). Similarly, § 2244(a) does not bar Barapind’s habeas challenge to the BIA’s decision to hold his asylum application in abeyance. Section 2244(a) allows district judges to refuse to entertain a habeas petition “to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or" }, { "docid": "22354340", "title": "", "text": "habeas application for which he did not seek, much less obtain, authorization to file. When Burton filed his first petition, the 1998 petition, he was being held in custody pursuant to the 1998 judgment, which had been entered some nine months earlier. When he filed his second petition, the 2002 petition, he was still being held in custody pursuant to the same 1998 judgment. In short, Burton twice brought claims contesting the same custody imposed by the same judgment of a state court. As a result, under AEDPA, he was required to receive authorization from the Court of Appeals before filing his second challenge. Because he did not do so, the District Court was without jurisdiction to entertain it. The Ninth Circuit determined that the 2002 petition was not “second or successive” because, under McCleskey v. Zant, 499 U. S. 467 (1991), Burton had a “legitimate excuse for failing to raise” his sentencing challenges in the 1998 petition. 142 Fed. Appx., at 299 (quoting McCleskey, supra, at 490; internal quotation marks omitted). Specifically, the Ninth Circuit reasoned that because Burton had not exhausted his sentencing claims in state court when he filed the 1998 petition, “they were not ripe for federal habeas review” at that time. 142 Fed. Appx., at 298. We assume for purposes of this case, without deciding, that the Ninth Circuit’s “legitimate excuse” approach to determining whether a petition is “second or successive” is correct. That court’s ruling that Burton had a “legitimate excuse,” however, is inconsistent with the precise practice we have explained governs in circumstances such as Burton’s. The plurality opinion in Rose v. Lundy, 455 U. S. 509, 520-522 (1982), stated that district courts should dismiss “mixed petitions” — those with exhausted and unexhausted claims— and that petitioners with such petitions have two options. They may withdraw a mixed petition, exhaust the remaining claims, and return to district court with a fully exhausted petition. We have held that in such circumstances the later filed petition would not be “second or successive.” Slack v. McDaniel, 529 U. S. 473, 485-486 (2000). Alternatively, prisoners filing mixed" }, { "docid": "19350487", "title": "", "text": "State court” must follow. Id. at 796; 28 U.S.C. § 2254(a). The Court interpreted the judgment at issue to be based on both the conviction and the sentence the petitioner is serving. In Burton’s case, the 1998 judgment and sentence together form the basis of his habeas petition: When Burton filed his first petition, the 1998 petition, he was being held in custody pursuant to the 1998 judgment, which had been entered some nine months earlier. When he filed his second petition, the 2002 petition, he was still being held in custody pursuant to the same 1998 judgment. In short, Bur-' ton twice brought claims contesting the same custody imposed by the same judgment of a state court. As a result, under AEDPA, he was required to receive authorization from the Court of Appeals before filing his second challenge. Id. at 796. Thus, when AEDPA states, “The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States,” the judgment to which AEDPA refers is the underlying conviction and most recent sentence that authorizes the petitioner’s current detention. 28 U.S.C. § 2254(a). The Court implies that if, in 1996 while incarcerated pursuant to the 1996 judgment, Burton had challenged his custody by only bringing claims concerning his 1994 conviction, his second habeas petition would not have been successive because it challenged his custody under a different judgment, the 1998 judgment, based on the 1994 conviction and 1998 sentence. See id. at 796, 798. The Court rejected Burton’s argument that if he had waited to file a federal petition until the state review of the 1998 sentence was complete, he risked losing the opportunity to challenge his 1994 conviction in federal court due to AEDPA’s one-year statute of limitations, an argument RaineywouLd have supported. Id. at 798-99. The same AEDPA language the Supreme" }, { "docid": "10811072", "title": "", "text": "PER CURIAM. The district court dismissed Chris Jacobs’s petition for a writ of habeas corpus, 28 U.S.C.§ 2254, on the ground that it was a second or successive petition that could not be filed without prior authorization from this court. See 28 U.S.C. § 2244(b)(3). Before us now is Jacobs’s application under § 2244(b)(3), seeking such authorization. We dismiss the application as unnecessary and instruct the district court to accept Jacobs’s petition. In 1988 Jacobs was charged with five counts of first degree murder. He was tried before a jury in October 1989 and acquitted on all five counts. Approximately 4 years later, the State, armed with new evidence, charged Jacobs again, this time with kidnapping and false imprisonment. Jacobs moved to dismiss the new charges on double jeopardy grounds, but the state courts denied his motion. Jacobs then filed a petition for a writ of habeas corpus in federal district court, arguing that double jeopardy and/or collateral estoppel barred prosecution. The district court denied the petition, and this court affirmed on appeal. Jacobs v. Marathon County, Wis., 73 F.3d 164 (7th Cir.1996). In August 1998 Jacobs was convicted after a jury trial on the kidnapping and false imprisonment charges. After exhausting his state remedies, Jacobs filed a § 2254 petition in federal district court, challenging both his conviction and his sentence. The district court concluded that this petition was second or successive and dismissed for lack of jurisdiction under 28 U.S.C. § 2244(b)(3)(A). Jacobs now argues that the petition he wishes to file is not a second or successive collateral attack within the meaning of § 2244. We agree. Jacobs’s first petition is properly classified as a § 2241 petition because it was filed pretrial and not while he was “in custody pursuant to judgment of a state court.” See Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir.2000) (§ 2254 is the vehicle for prisoners in custody pursuant to the judgment of a state court, but not those in state custody for some other reason, such as preconviction custody; in the latter case, § 2241 remains available); see" }, { "docid": "22354338", "title": "", "text": "to the extent the sentencing court departed from a standard sentence based on its own factual determinations. The District Court again denied the petition, App. 77, and the Ninth Circuit again affirmed, Burton v. Waddington, 142 Fed. Appx. 297 (2005). Both courts rejected the State’s contention that the District Court lacked jurisdiction to entertain the petition because Burton had not obtained an order from the Court of Appeals authorizing him to file a “second or successive” habeas petition, as required by the habeas gatekeeping provisions, 28 U. S. C. § 2244(b)(3). On the merits, the Ninth Circuit rejected Burton’s Apprendi claim and agreed with the State that Burton could not benefit from Blakely v. Washington, 542 U. S. 296, because that decision announced a new rule that did not apply retroactively to Burton’s sentence. 142 Fed. Appx., at 299. It is this petition, the 2002 petition, that is before us today. We conclude, though, that because the 2002 petition is a “second or successive” petition that Burton did not seek or obtain authorization to file in the District Court, the District Court never had jurisdiction to consider it in the first place. II The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a stringent set of procedures that a prisoner “in custody pursuant to the judgment of a State court,” 28 U. S. C. § 2254(a), must follow if he wishes to file a “second or successive” habeas corpus application challenging that custody, § 2244(b)(1). In pertinent part, before filing the application in the district court, a prisoner “shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” § 2244(b)(3)(A). A three-judge panel of the court of appeals may authorize the filing of the second or successive application only if it presents a claim not previously raised that satisfies one of the two grounds articulated in § 2244(b)(2). § 2244(b)(3)(C); Gonzalez v. Crosby, 545 U. S. 524, 529-530 (2005); see also Felker v. Turpin, 518 U. S. 651, 656-657, 664 (1996). Burton’s 2002 petition was a “second or successive”" }, { "docid": "22354339", "title": "", "text": "in the District Court, the District Court never had jurisdiction to consider it in the first place. II The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a stringent set of procedures that a prisoner “in custody pursuant to the judgment of a State court,” 28 U. S. C. § 2254(a), must follow if he wishes to file a “second or successive” habeas corpus application challenging that custody, § 2244(b)(1). In pertinent part, before filing the application in the district court, a prisoner “shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” § 2244(b)(3)(A). A three-judge panel of the court of appeals may authorize the filing of the second or successive application only if it presents a claim not previously raised that satisfies one of the two grounds articulated in § 2244(b)(2). § 2244(b)(3)(C); Gonzalez v. Crosby, 545 U. S. 524, 529-530 (2005); see also Felker v. Turpin, 518 U. S. 651, 656-657, 664 (1996). Burton’s 2002 petition was a “second or successive” habeas application for which he did not seek, much less obtain, authorization to file. When Burton filed his first petition, the 1998 petition, he was being held in custody pursuant to the 1998 judgment, which had been entered some nine months earlier. When he filed his second petition, the 2002 petition, he was still being held in custody pursuant to the same 1998 judgment. In short, Burton twice brought claims contesting the same custody imposed by the same judgment of a state court. As a result, under AEDPA, he was required to receive authorization from the Court of Appeals before filing his second challenge. Because he did not do so, the District Court was without jurisdiction to entertain it. The Ninth Circuit determined that the 2002 petition was not “second or successive” because, under McCleskey v. Zant, 499 U. S. 467 (1991), Burton had a “legitimate excuse for failing to raise” his sentencing challenges in the 1998 petition. 142 Fed. Appx., at 299 (quoting McCleskey, supra, at 490; internal quotation marks omitted). Specifically, the Ninth" }, { "docid": "22410153", "title": "", "text": "630 (CA9 1997). Shortly thereafter, the State obtained a warrant for respondent’s execution. Proceedings were then held in the Arizona Superior Court on respondent’s mental condition. That court concluded that respondent was fit to be executed. The Arizona Supreme Court rejected his appeal of that decision. Respondent then moved in the Federal District Court to reopen his Ford claim. He challenged both the conclusions reached and the procedures employed by the Arizona state courts. Petitioners responded that under AEDPA, the court lacked jurisdiction. The District Court agreed with petitioners, ruling on May 16,1997, that it did not have jurisdiction over the claim. Respondent then moved in the Court of Appeals for permission to file a successive habeas corpus application. § 2244(b)(3). The Court of Appeals stayed respondent’s execution so that it could consider his request. It later held that § 2244(b) did not apply to a petition that raises only a competency to be executed claim and that respondent did not, therefore, need authorization to file the petition in the District Court. It accordingly transferred the petition that had been presented to a member of that court back to the District Court. 118 F. 3d, at 634-635. We granted certiorari, 522 U. S. 912 (1997), to resolve an apparent conflict between the Ninth Circuit and the Eleventh Circuit on this important question of federal law. See, e. g., In re Medina, 109 F. 3d 1556 (CA11 1996). Before reaching the question presented, however, we must first decide whether we have jurisdiction over this case. In AEDPA, Congress established a “gatekeeping” mechanism for the consideration of “second or successive habeas corpus applications” in the federal courts. Felker v. Turpin, 518 U. S. 651, 657 (1996); § 2244(b). An individual seeking to file a “second or successive” application must move in the appropriate court of appeals for an order directing the district court to consider his application. § 2244(b)(3)(A). The court of appeals then has 30 days to decide whether to grant the authorization to file. § 2244(b)(3)(D). A court of appeals’ decision whether to grant authorization “to file a second or" }, { "docid": "20909780", "title": "", "text": "the statute. Section 2244(b) refers to second or1 successive petitions “under section 2254,” 28 U.S.C. § 2244(b), and section 2254 governs petitions that chai- lenge “the judgment of a State court” “pursuant to” which the prisoner is “in custody,” id. § 2254. Accordingly, the bar on second or successive petitions ordinarily prevents a prisoner from twice contesting the judgment authorizing his confinement. See Burton, 549 U.S. at 153, 127 S.Ct. at 796. A petition is not second or successive if it challenges a “new judgment” issued after the prisoner filed his first petition. Magwood, 561 U.S. at 324, 130 S.Ct. at 2792. But, again, the new judgment must be a new “judgment authorizing the prisoner’s confinement.” Id. at 332, 130 S.Ct. at 2797 (emphasis omitted) (quoting Dotson, 544 U.S. at 83, 125 S.Ct. at 1248). For example, in Magwood, a prisoner filed his first habeas petition, and the district court granted it and vacated his sentence. Id. at 326, 130 S.Ct. at 2793. The state court then conducted a new sentencing hearing and entered a new sentence. Id. When the prisoner filed a second habeas petition, the U.S. Supreme Court held that it was not second or successive because the petition was the prisoner’s “first” challenge to the new sentence. Id. at 339, 130 S.Ct. at 2801. Although the prisoner’s second petition restated the same errors as his first petition, the errors he alleged were “new.” Id. At the resentencing hearing, the state court had heard and rejected the prisoner’s arguments a second time, and “[a]n error made a second time is still a new error.” Id. Based on the text of the statute and the precedent of the Supreme Court, this case should have been easy. The judgment requiring Patterson’s confinement is the sentence entered in 1998. That judgment “committed [Patterson] to the custody of the Department of Corrections,” and that commitment has never been vacated or replaced. Patterson challenged that judgment in his 2006 petition for a writ of habeas corpus. When the 2006 petition was dismissed as untimely, Patterson lost his one chance to obtain federal habeas" } ]

[ { "docid": "22712299", "title": "", "text": "at base, an evaluation of whether the sentencing court properly considered the § 3553(a) factors, as it is required to do. Id. at 261. Accordingly, a contention that the district court imposed an unreasonable sentence is itself a contention that the court erred under § 3553(a). This is hardly a novel way for a party to assert error on appeal. Parties often frame their allegations of error in terms of the appellate standard of review — for example, by claiming that the district court abused its discretion in granting or denying certain relief. We do not lack appellate jurisdiction simply because a party invokes the appropriate standard of review. Accordingly, we turn to Montes-Pineda’s challenges to his sentence. III. A sentence after Booker may be unreasonable for both procedural and substantive reasons. “A sentence may be procedurally unreasonable, for example, if the district court provides an inadequate statement of reasons.... A sentence may be substantively unreasonable if the court relies on an improper factor or rejects policies articulated by Congress or the Sentencing Commission.” See United States v. Moreland, 437 F.3d 424, 434 (4th Cir.2006) (citations omitted). Montes-Pineda challenges his sentence on both substantive and procedural grounds. We reject both arguments. A. As we have held repeatedly, a sentence within a properly calculated advisory Guidelines range is presumptively reasonable. United States v. Johnson, 445 F.3d 339, 341, 2006 WL 893594, at *2 (4th Cir. Apr.7, 2006); Moreland, 437 F.3d at 433; United States v. Green, 436 F.3d 449, 457 (4th Cir.2006). “[A] defendant can only rebut the presumption by demonstrating that the sentence is unreasonable when measured against the § 3553(a) factors.” United States v. Sharp, 436 F.3d 730, 738 (7th Cir.2006). Here, the § 3553(a) factors clearly support the reasonableness of Montes-Pineda’s sentence. The reentry of an ex-felon is a serious offense for which Congress has seen fit to impose a statutory maximum sentence of 20 years. See 8 U.S.C. § 1326(b)(2). And Montes-Pineda is a chronic offender for the crime of his conviction: he concedes that he has illegally reentered this country at least three separate times after" } ]

[ { "docid": "22714314", "title": "", "text": "U.S.C.A. § 3742(e) (West 2000 & Supp.2005)). This excision rendered the guidelines “effectively advisory,” id. at 757, and replaced the previous standard of review with review for reasonableness, see id. at 765-66. That the guidelines are non-binding in the wake of Booker does not mean that they are irrelevant to the imposition of a sentence. To the contrary, remaining provisions of the Sentencing Reform Act require the district court to consider the guideline range applicable to the defendant and pertinent policy statements of the Sentencing Commission. See 18 U.S.C.A. § 3553(a)(4), (a)(5); Booker, 125 S.Ct. at 767 (stating that district courts “must consult [the] Guidelines and take them into account when sentencing”). In addition to the guidelines, the district court must consider “the nature and circumstances of the offense and the history and characteristics of the defendant,” 18 U.S.C.A. § 3553(a)(1); the court also must ensure that the sentence it imposes “fulfíll[s] the congressionally established objectives for sentencing: promoting respect for the law; providing just punishment for the offense; affording adequate deterrence; protecting the public from further criminal activity of the defendant; providing the defendant training, medical care, and correctional treatment; ... providing restitution to victims,” and avoiding unwarranted sentencing disparities. United States v. Green, 436 F.3d 449, 455, 2006 WL 267217, at *4 (4th Cir.2006); see 18 U.S.C.A. § 3553(a)(2), (a)(3), (a)(6), (a)(7). Thus, in imposing a sentence after Booker, the district court must engage in a multi-step process. First, the court must correctly determine, after making appropriate findings of fact, the applicable guideline range. See United States v. Hughes, 401 F.3d 540, 546 (4th Cir.2005). Next, the court must “determine whether a sentence within that range ... serves the factors set forth in § 3553(a) and, if not, select a sentence [within statutory limits] that does serve those factors.” Green, 436 F.3d at 455, 2006 WL 267217, at *4. In doing so, the district court should first look to whether a departure is appropriate based on the Guidelines Manual or relevant case law. (We will return to this subject momentarily.) If an appropriate basis for departure exists, the" }, { "docid": "22710132", "title": "", "text": "ambiguous labels than they at first appear”); Cooper, 437 F.3d at 331-32 (rejecting a non-rebuttable presumption because it would effectively restore the mandatory nature of the Guidelines and rejecting a rebuttable presumption because “[a]ppel-lants already bear the burden of proving the unreasonableness of sentences on appeal”). But see United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.2006) (“[I]f we determine under the appropriate standard of review that the district court correctly determined the relevant Guidelines range, and if the defendant was subsequently sentenced to a term of imprisonment within that range, then the sentence is entitled to a rebuttable presumption of reasonableness on appeal.”); United States v. Lewis, 436 F.3d 939, 946 (8th Cir.2006) (“A sentence falling within the applicable guideline range is presumptively reasonable.”); United States v. Green, 436 F.3d 449, 457 (4th Cir.2006) (“[A] sentence imposed within the properly calculated Guidelines range ... is presumptively reasonable.” (ellipsis in original and internal quotation marks omitted)); United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006) (“We ... credit[ ] sentences properly calculated under the Guidelines with a rebuttable presumption of reasonableness.”); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006) (“We agree with our sister circuits that have held that a sentence within a properly calculated Guideline range is presumptively reasonable.”); Mykytiuk, 415 F.3d at 608 (“The best way to express the new balance, in our view, is to acknowledge that any sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness.”); United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.) (considering a sentence within the applicable Guidelines range to be “presumptively reasonable”), cert. denied, —U.S. -, 126 S.Ct. 840, 163 L.Ed.2d 715 (2005). Although the Guidelines range should serve as “a benchmark or a point of reference or departure,” United States v. Rubenstein, 403 F.3d 93, 98-99 (2d Cir.), cert. denied, — U.S. -, 126 S.Ct. 388, 163 L.Ed.2d 173 (2005); see also Crosby, 397 F.3d at 113 (“[I]t is important to bear in mind that Booker[ ] and section 3553(a) do more than render the Guidelines a body" }, { "docid": "22896725", "title": "", "text": "more than (1) traveling in interstate commerce (the jurisdictional basis) with (2) intent to engage in illicit sexual conduct. Put differently, the government argues that the linchpin of the statute is the prohibited intent, and not whether an identifiable child was put at risk. The district court accepted the government’s argument, and we review this decision de novo. See United States v. Kennedy, 372 F.3d 686, 696 (4th Cir.2004). While this circuit has not previously addressed whether an actual child must be involved in order to secure a conviction under § 2423(b), other circuits have done so and have uniformly rejected Kelly’s argument. Today we join our sister circuits in this regard, holding that the government need not prove an actual minor was placed at risk in order to secure a conviction under § 2423(b). This sensible result follows from the clear language of the statute, under which a conviction “turns simply on the illegal purpose for which [the defendant] traveled.” See Root, 296 F.3d at 1231. The statute is designed “to protect minors from predatory sexual conduct by adults.” Vang, 128 F.3d at 1069. It would be anomalous to allow prosecution of those individuals who successfully place a specific, identified child in danger, yet set free those who possess the prohibited intent, but are prevented from placing a real child in danger by effective law enforcement. E. Finally, Kelly challenges the district court’s imposition of a 63-month sentence. We review a district court’s sentence for reasonableness. See United States v. Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir.2005). Booker requires a district court to calculate the appropriate guidelines range, making the requisite, appropriate factual findings and considering whether any authorized departures may be appropriate. See United States v. Davenport, 445 F.3d 366, 370 (4th Cir.2006). The district court should then determine an appropriate sentence, taking into account both the advisory sentencing guidelines range and the factors set forth in 18 U.S.C. § 3553(a). Id. The sentence must be “sufficient, but not greater than necessary” to" }, { "docid": "23331881", "title": "", "text": "forth in § 3553(a) and, if not, select[s] a sentence that does serve those factors.” United States v. Green, 436 F.3d 449, 456 (4th Cir.2006). In selecting a sentence outside the advisory guidelines range, the court should first consider whether appropriate grounds for departure exist. United States v. Davenport, 445 F.3d 366, 370 (4th Cir.2006); Moreland, 437 F.3d at 432. When “an appropriate basis for departure exists, the district court may depart.” Moreland, 437 F.3d at 432. “If the resulting departure range still does not serve the factors set forth in § 3553(a),” the court may impose a variance sentence. Davenport, 445 F.3d at 370. B. The district court in this case granted the government’s motion for upward departure on the ground that Dalton’s criminal history category inadequately reflected his actual criminal history. See U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 4A1.3 (2006). Because the district court properly imposed a departure sentence before considering a variance sentence, Davenport, 445 F.3d at 370, this case presents no question as to whether a variance sentence would be appropriate. We review the court’s departure for reasonableness. Id. To begin with, the presentence investigation report (“PSR”) in this case recommended a base offense level of six and a total offense level of sixteen. See U.S.S.G § 2B1.1(a)(2). Based on Dalton’s past criminal conduct, the PSR assigned him fifteen criminal history points, placing him in Criminal History Category VI. The advisory guidelines range for Dalton’s sentence was 46-57 months’ imprisonment. At the first sentencing hearing, the district court adopted paragraphs 1 through 116 of the PSR as findings of fact. The court found that Dalton had twenty-three potential criminal history points that had not been included in Dalton’s criminal history count. It combined these points with the countable criminal history points, arriving at a total criminal history score well beyond the thirteen points needed to establish a criminal history category of six. Based on these criminal history findings, the district court granted the government’s motion for an upward departure and extended the table horizontally impos ing a 105-month sentence. On remand, the district court again evaluated" }, { "docid": "11759972", "title": "", "text": "history. The government contends Rouillard’s extensive and dangerous criminal past and repeated violations of the terms of his probation justify the upward departure, however, the government concedes no factors justify the extent of the upward variance, which the government alleges results in unwarranted sentencing disparities. II. DISCUSSION After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing court first must calculate the advisory Guidelines sentencing range. United States v. Ture, 450 F.3d 352, 356 (8th Cir.2006). After the Guidelines range has been calculated, the sentencing court should consider whether any traditional departures are appropriate in determining the Guidelines range sentence. United States v. Bueno, 443 F.3d 1017, 1022 (8th Cir.2006). Calculating an appropriate Guidelines range sentence is “the critical starting point,” United States v. Mashek, 406 F.3d 1012, 1016 n. 4 (8th Cir.2005), to appraise any sentence because the Guidelines incorporate the other § 3553(a) factors and “are the product of years of careful study,” United States v. McDonald, 461 F.3d 948, 952-53 (8th Cir.2006) (quoting United States v. Shafer, 438 F.3d 1225, 1227 (8th Cir.2006)), petition for cert. filed, — U.S.L.W. - (Nov. 28, 2006) (No. 06-8086). Only after the sentencing court has calculated a Guidelines range sentence should the court consider the other factors set forth at § 3553(a) to determine whether to impose a non-Guidelines range sentence. United States v. Haack, 403 F.3d 997, 1003 (8th Cir.), cert. denied, — U.S. ——, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). A. Guidelines Range Calculation We review de novo the district court’s interpretation and application of the advisory Guidelines and review for clear error its findings of fact. United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir.2005). Before departing, the district court concluded Rouillard’s Guidelines sentencing range was 30 to 37 months’ imprisonment. Both Rouillard and the government agree the district court properly calculated the advisory Guidelines sentencing range before it departed. Accordingly, we only review the departure and variance. B. Departure We review for abuse of discretion any departures from the advisory sentencing Guidelines. Mashek, 406 F.3d at 1017. “Although" }, { "docid": "22439701", "title": "", "text": "does not argue that he did not complete, or did not believe he completed, the facts set out in the indictment. As those facts are sufficient to constitute the completed act of wire fraud, the district court properly denied his request for a three-level reduction under U.S.S.G. § 2Xl.l(b). 4. Request for Downward Departure Gale claims that the district court erred in denying his request for a downward departure. In determining whether the district court correctly calculated the advisory Guidelines sentencing range, we do “not have authority to review the district court’s decision not to depart downward.” Jones, 445 F.3d at 868 (discussing United States v. Puckett, 422 F.3d 340, 346 (6th Cir.2005), cert. denied, — U.S.-, 126 S.Ct. 1935, 164 L.Ed.2d 683 (2006)). The sole exception is where “the district court was not aware of or did not understand its discretion to make such a departure.” Id. (quoting Puckett, 422 F.3d at 344). Here, the record reflects that the district court understood it had the discretion to depart downward. Accordingly, we cannot review the lower court’s refusal to depart under the Guidelines. As explained in Jones, however, we can consider the bases for the underlying requests within the framework of our review of the remaining § 3553(a) factors, which we take up next. 445 F.3d at 868-69. C. Non-Guidelines Sentencing Factors In this circuit (as well as several other sister circuits), a sentence falling within the properly calculated Guidelines range is credited “with a rebuttable presumption of reasonableness.” Cage, 458 F.3d at 541 (quoting United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006), petition for cert. filed (U.S. July 11, 2006) (No. 06-5275)); see also United States v. Lonnie Davis, 458 F.3d 505, 510 (6th Cir.2006) (“Within-Guidelines sentences such as Davis’s are afforded a rebuttable presumption of reasonableness.” (citing Williams)); William Davis, 458 F.3d at 496 (“When the district court issues a within-guidelines sentence — when the independent views of the sentencing judge and the Sentencing Commission align — we apply a presumption of reasonableness to the sentence.” (citing Williams)). As the district court correctly calculated the applicable" }, { "docid": "22714315", "title": "", "text": "from further criminal activity of the defendant; providing the defendant training, medical care, and correctional treatment; ... providing restitution to victims,” and avoiding unwarranted sentencing disparities. United States v. Green, 436 F.3d 449, 455, 2006 WL 267217, at *4 (4th Cir.2006); see 18 U.S.C.A. § 3553(a)(2), (a)(3), (a)(6), (a)(7). Thus, in imposing a sentence after Booker, the district court must engage in a multi-step process. First, the court must correctly determine, after making appropriate findings of fact, the applicable guideline range. See United States v. Hughes, 401 F.3d 540, 546 (4th Cir.2005). Next, the court must “determine whether a sentence within that range ... serves the factors set forth in § 3553(a) and, if not, select a sentence [within statutory limits] that does serve those factors.” Green, 436 F.3d at 455, 2006 WL 267217, at *4. In doing so, the district court should first look to whether a departure is appropriate based on the Guidelines Manual or relevant case law. (We will return to this subject momentarily.) If an appropriate basis for departure exists, the district court may depart. If the resulting departure range still does not serve the factors set forth in § 3553(a), the court may then elect to impose a non-guideline sentence (a “variance sentence”). The district court must articulate the reasons for the sentence imposed, particularly explaining any departure or variance from the guideline range. See 18 U.S.C.A. § 3553(c) (West Supp.2005); Hughes, 401 F.3d at 546 & n. 5. The explanation of a variance sentence must be tied to the factors set forth in § 3553(a) and must be accompanied by findings of fact as necessary. See Green, 436 F.3d at 455-56, 2006 WL 267217, at *4-*5. The district court need not discuss each factor set forth in § 3553(a) “in checklist fashion”; “it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less.” United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005) (internal quotation marks omitted). We note that the continuing validity of departures in post-Booker federal sentencing proceedings has been" }, { "docid": "3674682", "title": "", "text": "review in conformance with the guidelines. See Booker, 543 U.S. at 259, 125 S.Ct. 738. This excision rendered the guidelines “effectively advisory,” id. at 245, 125 S.Ct. 738, and replaced the previous standard of review with review for reasonableness, see id. at 261, 125 S.Ct. 738. We have previously described the necessary procedure for imposing sentence under the now-advisory sentencing guidelines: First, the court must correctly determine, after making appropriate findings of fact, the applicable guideline range. Next, the court must determine whether a sentence within that range serves the factors set forth in [18 U.S.C.A.] § 3553(a) [ (West 2000 & Supp.2006) ] and, if not, select a sentence within statutory limits that does serve those factors. In doing so, the district court should first look to whether a departure is appropriate based on the Guidelines Manual or relevant case law.... If an appropriate basis for departure exists, the district court may depart. If the resulting departure range still does not serve the factors set forth in § 3553(a), the court may then elect to impose a non-guideline sentence (a “variance sentence”). The district court must articulate the reasons for the sentence imposed, particularly explaining any departure or variance from the guideline range. The explanation of a variance sentence must, be tied to the factors set forth in § 3553(a) and must be accompanied by findings of fact as necessary. The district court need not discuss each factor set forth in § 3553(a) in checklist fashion; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less. United States v. Moreland, 437 F.3d 424, 432 (4th Cir.) (citations, internal quotation marks, & alterations omitted), cert. denied, — U.S. -, 126 S.Ct. 2054, 164 L.Ed.2d 804 (2006). We review a sentence for reasonableness, considering “the extent to which the sentence ... comports with the various, and sometimes competing, goals of § 3553(a).” Id. at 433. We begin our analysis by recounting the manner in which the district court calculated Appellants’ advisory guideline ranges. Baucom’s presentence report (PSR) estimated" }, { "docid": "19753308", "title": "", "text": "arguing that his sentence was unreasonable and that the district court failed to properly consider the factors under 18 U.S.C. § 3553(a). He makes no challenge to the calculation of the applicable advisory Guidelines range of 360 years to life. “We review the reasonableness of a sentence for an abuse of discretion,” and we have held that sentences within the Sentencing Guidelines are presumptively reasonable. United States v. Vasquez, 433 F.3d 666, 670 (8th Cir.2005), petition for cert. filed, — U.S.L.W. - (Apr. 11, 2006) (No. 05-10381). However, a presumptively reasonable sentence may still be found unreasonable “if the sentencing court: (1) fails to consider a relevant factor that should have received significant weight; (2) gives significant weight to an improper or irrelevant factor; or (3) considers only the appropriate factors but in weighing those factors commits a clear error of judgment.” Id. at 671. Nothing indicates that the district court based Straughan’s sentence on an “improper or irrelevant factor,” or “failed to consider a relevant factor.” See id. Instead, the district court recognized its right under Booker to sentence outside the Guidelines, determined the proper, applicable advisory Guidelines range, chose a sentence at the low end of that range, and then justified that sentence by specific reference to the § 3553(a) factors. See United States v. Cadenas, 445 F.3d 1091, 1095 (8th Cir.2006) (“While not making explicit findings with respect to each, the record reflects that the district court recognized its obligation to consider the § 3553(a) factors and did actually consider them in determining the appropriate sentence.”); United States v. Dieken, 482 F.3d 906, 909 (8th Cir.2006) (holding that the district court is required to fully consider the § 3553(a) factors when determining sentence, but need not “categorically rehearse each ... on the record ... as long as it is clear that they were considered”), petition for cert. filed, — U.S.L.W. - (June 15, 2006) (No. 05-11598). Straughan has failed to rebut the presumption of reasonableness that attaches to a sentence imposed post-Booker that is within the Guidelines range, and we affirm the district court’s judgment as to" }, { "docid": "23331880", "title": "", "text": "$1,000 in violation of 18 U.S.C. § 1029(a)(2). Dalton pled guilty on March 1, 2004. On September 8, 2004, the district court sentenced him to a term of 105 months’ imprisonment, three years supervised release, restitution in the amount of $98,851.64, and a $100 special assessment under the then mandatory guidelines. Dalton appealed and this court remanded for resentencing in light of the Supreme Court’s intervening decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Dalton, 150 Fed.Appx. 219 (4th Cir.2005). On remand, the district court held a second sentencing hearing and re-sentenced Dalton to 105 months’ imprisonment under the advisory guidelines. Dalton now appeals the corrected sentence. II. A. Imposing a post-Booker sentence under the advisory guidelines is a multi-step process. United States v. Moreland, 437 F.3d 424, 432 (4th Cir.2006). First, the district court “must correctly determine, after making appropriate findings of fact, the applicable guidelines range.” Id. The court then considers whether a sentence within that range “serves the factors set forth in § 3553(a) and, if not, select[s] a sentence that does serve those factors.” United States v. Green, 436 F.3d 449, 456 (4th Cir.2006). In selecting a sentence outside the advisory guidelines range, the court should first consider whether appropriate grounds for departure exist. United States v. Davenport, 445 F.3d 366, 370 (4th Cir.2006); Moreland, 437 F.3d at 432. When “an appropriate basis for departure exists, the district court may depart.” Moreland, 437 F.3d at 432. “If the resulting departure range still does not serve the factors set forth in § 3553(a),” the court may impose a variance sentence. Davenport, 445 F.3d at 370. B. The district court in this case granted the government’s motion for upward departure on the ground that Dalton’s criminal history category inadequately reflected his actual criminal history. See U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 4A1.3 (2006). Because the district court properly imposed a departure sentence before considering a variance sentence, Davenport, 445 F.3d at 370, this case presents no question as to whether a variance sentence would be appropriate." }, { "docid": "21270524", "title": "", "text": "consecutive sentence for Smith’s use of fire or an explosive to commit a felony, resulting in a final guide lines range of 715-773 months. See 18 U.S.C.A. § 844(h)(1); U.S.S.G. § 2K2.4(a). Noting the serious nature of the crime, and citing the need to protect the community, the district court imposed a variance sentence of 960 months. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which rendered the federal sentencing guidelines advisory, effected a significant change in the way that federal sentences are determined, leaving much uncertainty in its wake. Since Booker was issued, and since the district court sentenced Smith, we have decided many important issues regarding how the advisory sentencing guidelines scheme should be applied, including the process courts must employ in incorporating the advisory guideline range into its analysis of what sentence to impose, see United States v. Moreland, 437 F.3d 424, 432-33 (4th Cir.), cert. denied, - U.S. -, 126 S.Ct. 2054, 164 L.Ed.2d 804 (2006), and whether courts should continue to consider the appropriateness of departures in determining the defendant’s advisory guidelines range, see United States v. Davenport, 445 F.3d 366, 372 n. 2 (4th Cir.2006), both of which bear on Smith’s sentence. In order to give the district court the benefit of these and other recent decisions, we vacate Smith’s sentence and remand for reconsideration. In so doing, we make no comment on the reasonableness of the sentence imposed. VI. In sum, we affirm Appellants’ convictions but vacate Smith’s sentence and remand for resentencing. AFFIRMED IN PART AND VACATED AND REMANDED IN PART . Harris was not a member of the Bloods, but he supplied drugs to several Bloods members to sell. . Appellants maintain that this issue affects the validity not only of their witness tampering convictions but also their convictions for conspiracy, using a firearm during and in relation to a crime of violence, and using fire or an explosive to commit a felony. . Formerly 18 U.S.C.A. § 1512(f)(2). . Section 1512(b)(3) makes it unlawful, as is relevant here, to mislead another person with intent" }, { "docid": "22786292", "title": "", "text": "L.Ed.2d 261 (2006); United States v. Jamison, 416 F.3d 538, 539 (7th Cir.2005). We, likewise, reject Davenport’s claim. When he committed the crime, Davenport was on notice that the maximum statutory penalty was 15 years; this is all that is required to satisfy the concerns of fair notice embodied by the Ex Post Facto Clause. See Austin, 432 F.3d at 599-600. B. Davenport next challenges his ten-year sentence as unreasonable. See United States v. Booker, 543 U.S. 220, 260-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Green, 436 F.3d 449, 456-57 (4th Cir.2006). For the reasons set forth below, we vacate and remand for resentencing. 1. This court has previously described the necessary procedure for imposing sentence under the now-advisory sentencing guidelines: First, the court must correctly determine, after making appropriate findings of fact, the applicable guideline range. Next, the court must determine whether a sentence within that range serves the factors set forth in § 3553(a) and, if not, select a sentence within statutory limits that does serve those factors. In doing so, the district court should first look to whether a departure is appropriate based on the Guidelines Manual or relevant case law.... If an appropriate basis for departure exists, the district court may depart. If the resulting departure range still does not serve the factors set forth in § 3553(a), the court may then elect to impose a non-guideline sentence (a “variance sentence”). The district court must articulate the reasons for the sentence imposed, particularly explaining any departure or variance from the guideline range. The explanation of a variance sentence must be tied to the factors set forth in § 3553(a) and must be accompanied by findings of fact as necessary. The district court need not discuss each factor set forth in § 3553(a) in checklist fashion; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less. United States v. Moreland, 437 F.3d 424, 432 (4th Cir.2006) (citations, internal quotation marks, & alterations omitted); see United States v. Foreman, 436 F.3d" }, { "docid": "22896726", "title": "", "text": "predatory sexual conduct by adults.” Vang, 128 F.3d at 1069. It would be anomalous to allow prosecution of those individuals who successfully place a specific, identified child in danger, yet set free those who possess the prohibited intent, but are prevented from placing a real child in danger by effective law enforcement. E. Finally, Kelly challenges the district court’s imposition of a 63-month sentence. We review a district court’s sentence for reasonableness. See United States v. Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir.2005). Booker requires a district court to calculate the appropriate guidelines range, making the requisite, appropriate factual findings and considering whether any authorized departures may be appropriate. See United States v. Davenport, 445 F.3d 366, 370 (4th Cir.2006). The district court should then determine an appropriate sentence, taking into account both the advisory sentencing guidelines range and the factors set forth in 18 U.S.C. § 3553(a). Id. The sentence must be “sufficient, but not greater than necessary” to achieve the goals of sentencing. § 3553(a). And importantly, “a sentence within the proper advisory Guidelines range is presumptively reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir.2006); see Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2462-68, 168 L.Ed.2d 203 (2007) (upholding a presumption of reasonableness for sentences within guidelines range). In this case, the district court properly calculated the guidelines range as between 51 and 63 months, based on Kelly’s offense level of 24 and criminal history category of I. It then imposed a sentence of 63 months, the top of the advisory guidelines range. In doing so, the district court explicitly rejected Kelly’s argument that because no actual minor child was involved and because Kelly’s prior conviction was 22 years prior to the charged crime, Kelly should be sentenced at the lower end of the guidelines range. On the record presented, the district court appropriately found that Kelly’s “predilection for sexual violence” and the fact that Kelly took substantial steps toward having sex with a minor militated against" }, { "docid": "22805513", "title": "", "text": "after making appropriate findings of fact, must initially calculate the proper guideline range. United States v. Hughes, 401 F.3d 540, 546 (4th Cir.2005). A court must consider this range, along with the other factors set forth in § 3553(a), in determining an appropriate sentence in each case. Booker, 125 S.Ct. at 757; Hughes, 401 F.3d at 546-47. Thus, after determining the advisory guideline range, a sentencing court must consider “the nature and circumstances of the offense and the history and characteristics of the defendant” and the need “to reflect the seriousness of the offense,” provide “just punishment,” “afford adequate deterrence,” “protect the public,” and “avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C.A. § 3553(a). See also United States v. Green, 436 F.3d 449, 455-56 (4th Cir.2006). Only sentences that “reflect” these § 3553(a) factors—whether falling within or outside the guideline range—comply with Congress’s statutory mandate. See Booker, 125 S.Ct. at 765. In determining if a sentence “serves the factors set forth in § 3553(a),” a court should determine, after calculating the initial guideline range, whether a traditional upward or downward departure under the guidelines would be appropriate; if so, the court may depart accordingly. United States v. Moreland, 437 F.3d 424, 432 (4th Cir.2006). If after this consideration the sentence rendered does not serve the § 3553(a) factors, a court may impose a “variance sentence,” ie., a sentence not within the advisory guideline range. The court may impose this variance sentence provided that the sentence falls within the statutory limits for the underlying offense and is “reasonable.” Id.; Green, 436 F.3d at 456. But the sentencing court must adequately explain the reasons for the variance. Hughes, 401 F.3d at 546. The reasonableness of any given sentence will largely depend upon the specific facts of each case and the district court’s consideration and application of the § 3553(a) factors to those facts. Moreland, 437 F.3d at 433. In considering whether a sentence is unreasonable, we will review the district court’s legal conclusions de novo and its factual findings for clear" }, { "docid": "22786291", "title": "", "text": "63 (1997). The central concern of the ex post facto prohibition is “the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver, 450 U.S. at 30, 101 S.Ct. 960. The clause seeks to ensure “that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed,” and it guards against “arbitrary and potentially vindictive legislation.” Id. at 28-29, 101 S.Ct. 960. Ex Post Facto challenges to the retroactive application of Booker have been universally rejected by the federal courts. See, e.g., United States v. Austin, 432 F.3d 598, 599-600 (5th Cir.2005) (per curiam); United States v. Vaughn, 430 F.3d 518, 524-25 (2d Cir.2005), petition for cert. filed, No. 05-9499 (U.S. Mar. 1, 2006); United States v. Perez-Ruiz, 421 F.3d 11, 15 (1st Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1092, 163 L.Ed.2d 907 (2006); United States v. Dupas, 419 F.3d 916, 919-21 (9th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1484, 164 L.Ed.2d 261 (2006); United States v. Jamison, 416 F.3d 538, 539 (7th Cir.2005). We, likewise, reject Davenport’s claim. When he committed the crime, Davenport was on notice that the maximum statutory penalty was 15 years; this is all that is required to satisfy the concerns of fair notice embodied by the Ex Post Facto Clause. See Austin, 432 F.3d at 599-600. B. Davenport next challenges his ten-year sentence as unreasonable. See United States v. Booker, 543 U.S. 220, 260-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Green, 436 F.3d 449, 456-57 (4th Cir.2006). For the reasons set forth below, we vacate and remand for resentencing. 1. This court has previously described the necessary procedure for imposing sentence under the now-advisory sentencing guidelines: First, the court must correctly determine, after making appropriate findings of fact, the applicable guideline range. Next, the court must determine whether a sentence within that range serves the factors set forth in § 3553(a) and, if not, select a sentence within statutory limits that does serve those factors. In" }, { "docid": "23340498", "title": "", "text": "or variance from the guideline range.” Id. Reviewing the reasonableness of the resulting sentence is a “complex and nuanced” task that “requir[es] us to consider the extent to which the sentence imposed by the district court comports with the various, and sometimes competing, goals of § 3553(a).” Id. at 433 (internal quotation marks omitted). “The reasonableness of a sentence ultimately will turn on the particular factors of each case.” Id. We have previously explained that a “district court’s job is not to impose a ‘reasonable’ sentence. Rather, a district court’s mandate is to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of § 3553(a)[]. Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task.” United States v. Davenport, 445 F.3d 366, 370 (4th Cir.2006) (quoting United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2006) (emphasis in original)). Ultimately, [T]he overarching standard of review for unreasonableness will not depend on whether we agree with the particular sentence selected, but whether the sentence was selected pursuant to a reasoned process in accordance with law, in which the court did not give excessive weight to any relevant factor, and which effected a fair and just result in light of the relevant facts and law. United States v. Green, 436 F.3d 449, 457 (4th Cir.2006) (internal citation omitted). In reviewing a variance sentence, we must consider “whether the district court acted reasonably with respect to (1) the imposition of a variance sentence, and (2) the extent of the variance.” Moreland, 437 F.3d at 434. “Generally, if the reasons justifying the variance are tied to § 3553(a) and are plausible, the sentence will be deemed reasonable. However, where the variance is a substantial one ... we must more carefully scrutinize the reasoning offered by the district court in support of the sentence.” Id. “The farther the court diverges from the advisory guideline range, the more compelling the reasons for the divergence must be.” Id. B. In reviewing Tucker’s sentence, we are informed by our recent jurisprudence regarding variance sentences." }, { "docid": "8460089", "title": "", "text": "449, 457 (4th Cir.2006); United States v. Fernandez, 443 F.3d 19, 27, 34-35 (2d Cir.2006), most courts have given these sentences a harder look. And that seems appropriate given § 3553(a)’s concerns about uniformity, the guidelines’ efforts to account for the § 3553(a) factors and the decision of the sentencing judge not to follow the recommendations of the Sentencing Commission. If I have one anxiety about the presumption, it is the risk that it will cast a discouraging shadow on trial judges who otherwise would grant variances in exercising their independent judgment. But there is good reason to doubt that rejecting the presumption would mitigate this concern. Even the appellate courts that have declined to adopt the presumption have acknowledged the unsurprising truth that unvaried sentences customarily will be reasonable. See United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.2006) (“We recognize that in the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances.”); United States v. Jiménez-Beltre, 440 F.3d 514 (1st Cir.2006) (en banc) (noting that unvaried sentences will receive “substantial weight” on appellate review); United States v. Cooper, 437 F.3d 324, 331-32 (3d Cir.2006) (noting that “a within-guidelines range sentence is more likely to be reasonable than one that lies outside the advisory guidelines range”); United States v. Zavala, 443 F.3d 1165, 1170 (9th Cir.2006) (noting that “it is very likely that the Guideline calculation will yield a site within the borders of reasonable sentencing territory”). Properly understood, moreover, reasonableness (and, it follows, a presumption of reasonableness) is primarily an appellate, not a trial court, device. “[A] district court’s job is not to impose a ‘reasonable’ sentence. Rather, a district court’s mandate is to impose ‘a sentence sufficient, but not greater than necessary, to comply with the purposes’ of section 3553(a). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task.” United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2006); see United States v. Davenport, 445 F.3d 366, 370 (4th Cir.2006). With" }, { "docid": "22746889", "title": "", "text": "would reduce the risk of Pauley becoming a repeat offender and would deter him from future criminal conduct. These are also valid considerations under § 3553(a). In sum, considering all of the factors that the district court viewed as mitigating in their totality, we hold that the thirty-six month downward variance was supported by the justifications necessary to uphold the sentence. C In its brief, which was filed before the Supreme Court’s decisions in Gall and Kimbrough, the government argues that, under our decisions in United States v. Khan, 461 F.3d 477 (4th Cir.2006), cert. denied, - U.S. -, 127 S.Ct. 2428, 167 L.Ed.2d 1130 (2007), and United States v. Moreland, 437 F.3d 424 (4th Cir.), cert. denied, 547 U.S. 1142, 126 S.Ct. 2054, 164 L.Ed.2d 804 (2006), Pauley’s sentence must be vacated because the district court was not permitted to vary from the Guidelines range unless compelling reasons existed to justify the substantial variance from the Guidelines range. According to the government, no such compelling reasons are present. In a related argument, relying on our decision in United States v. Green, 436 F.3d 449 (4th Cir.), cert. denied, 547 U.S. 1156, 126 S.Ct. 2309, 164 L.Ed.2d 828 (2006), the government argues that Pauley’s sentence must be vacated because the district court placed excessive weight on Pauley’s history and characteristics. See id. at 457 (“[T]he overarching standard of review for unreasonableness will not depend on whether we agree with the particular sentence selected, ... but whether the sentence was selected pursuant to a reasoned process in accordance with law, in which the court did not give excessive weight to any relevant factor, and which effected a fair and just result in light of the relevant facts and law.”). We reject both of these arguments. With regard to the former argument, the government reads too much into our decision in Khan. In Moreland, we stated that the “farther the court diverges from the advisory guideline range, the more compelling the reasons for the divergence must be.” Moreland, 437 F.3d at 434. This statement is consistent with Gall’s requirement that, if the" }, { "docid": "8460090", "title": "", "text": "F.3d 514 (1st Cir.2006) (en banc) (noting that unvaried sentences will receive “substantial weight” on appellate review); United States v. Cooper, 437 F.3d 324, 331-32 (3d Cir.2006) (noting that “a within-guidelines range sentence is more likely to be reasonable than one that lies outside the advisory guidelines range”); United States v. Zavala, 443 F.3d 1165, 1170 (9th Cir.2006) (noting that “it is very likely that the Guideline calculation will yield a site within the borders of reasonable sentencing territory”). Properly understood, moreover, reasonableness (and, it follows, a presumption of reasonableness) is primarily an appellate, not a trial court, device. “[A] district court’s job is not to impose a ‘reasonable’ sentence. Rather, a district court’s mandate is to impose ‘a sentence sufficient, but not greater than necessary, to comply with the purposes’ of section 3553(a). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task.” United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2006); see United States v. Davenport, 445 F.3d 366, 370 (4th Cir.2006). With or without the presumption, the district court’s job remains the same — fulfilling the core mission of the Booker remedial opinion by ensuring that it is exercising independent judgment in sentencing criminal defendants within statutory limits. See Booker, 543 U.S. at 233, 125 S.Ct. 738 (‘We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.”). And in exercising that “broad discretion” under Booker, importantly, the guidelines’ restrictions on granting departures do not circumscribe a trial court’s decision to grant a variance. See United States v. Smith, 445 F.3d 1, 3 (1st Cir.2006) (“That a factor is discouraged or forbidden under the guidelines does not automatically make it irrelevant when a court is weighing the statutory factors apart from the guidelines. The guidelines — being advisory — are no longer decisive as to factors any more than as to results.”). That the presumption is an appellate, not a trial court, device, does not mean that every sentence a trial court deems “reasonable” or to which" }, { "docid": "22621970", "title": "", "text": "sentenced under the advisory Sentencing Guidelines, and we, thus review his sentence for reasonableness. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 765, 160 L.Ed.2d 621 (2005); United States v. Green, 436 F.3d 449, 456 (4th Cir.2006). “The reasonableness of a sentence ultimately will turn on the particular factors of each case,” but “certain principles would appear to be universally applicable.” United States v. Moreland, 437 F.3d 424, 433 (4th Cir.2006). Foremost among these is that a sentence within the proper advisory Guidelines range is presumptively reasonable. See id.; Green, 436 F.3d at 457. This approach to post-Booker appellate review is required for three basic reasons: the process by which the Guidelines were established, their incorporation of Congress’s sentencing objectives, and the individualized factfinding required to apply them. While we stated in both Moreland and Green that Guidelines sentences are presumptively reasonable, neither case involved a sentence within a properly calculated Guidelines range. See Moreland, 437 F.3d at 435 (variance sentence); Green, 436 F.3d at 458 (incorrectly calculated Guidelines range). Because the instant case presents our first occasion to apply this presumption, we take this opportunity to briefly explore the three justifications outlined above in greater detail. A. The first reason that Guidelines sentences are presumptively reasonable under Booker is the legislative and administrative process by which they were created. Dissatisfied with widespread sentencing disparities among offenders who engaged in similar criminal conduct, Congress in the Sentencing Reform Act of 1984 established the United States Sentencing Commission and charged it with devising a set of determinate sentencing guidelines. See 18 U.S.C.A. § 3551 et seq. (West 2005); 28 U.S.C.A. § 991 et seq. (West 2005); Booker, 125 S.Ct. at 762; Mistretta v. United States, 488 U.S. 361, 366-70, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Though its goals were overarching, see 28 U.S.C.A. § 991(b)(1), Congress was hardly inattentive to detail, see Mistretta, 488 U.S. at 374-77, 109 S.Ct. 647. It instructed the Commission to craft a sentencing range “for each category of offense involving each category of defendant,” 28 U.S.C.A. § 994(b)(1), and to establish categories" } ]

[ { "docid": "4401739", "title": "", "text": "risk of injury to health or the environment and whether Shell intentionally misrepresented facts about Rabón or fraudulently concealed information about Rabón, so as to trigger the provisions of subsection 60 — 3303(b)(2)(B). We review the grant of summary judgment de novo, applying the same legal standard as the district court, Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990), and, as we are sitting in diversity, we apply Kansas substantive law. Flight Concepts Ltd. Partnership v. Boeing Co., 38 F.3d 1152, 1156 (10th Cir.1994). Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). In reviewing the grant of summary judgment, we view the record in the light most favorable to the nonmoving party. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Because statutes of limitation and repose must be raised as affirmative defenses, Feed Specialties and Shell have the burden of proof on- the issue of whether plaintiffs action was timely filed. See Admire Bank & Trust v. City of Emporia, 250 Kan. 688, 829 P.2d 578, 582 (1992). Plaintiff has the burden of showing that his action falls within one of the exceptions to the statute. II. DISCUSSION A. The Latent Disease Exception. The focus of this case below, and certainly on appeal, is whether Mr. Koch’s claims fall within the latent disease exception to the statute of repose. The latent disease exception is contained in Kan.Stat.Ann. § 60-3303(d), which provides as follows: (d)(1) In a product liability claim against the product seller, the ten-year limitation, as defined in K.S.A. 60-513, and amendments thereto, shall not apply to the time to discover a disease which is latent caused by exposure to a harmful material, in which event the action shall be deemed to have accrued when the disease and such disease’s cause have been made known to the person or at the point the person should have been aware" } ]

[ { "docid": "8002852", "title": "", "text": "unhelpful in the same manner as Roskam’s argument that the SOR is a defense of “avoidance” and is therefore facially covered by Fed.R.Civ.P. 8(c); the mere fact that the SOR can be interpreted to fit within the words of the definition does not help determine whether it therefore should be so interpreted. Dominguez’s second argument is similarly unpersuasive. He claims that it would lead to absurd results to interpret the SOR as a statute of limitations (and thus an affirmative defense that is waived if not raised in the responsive pleading) in some cases and as a statute of repose (and not an affirmative defense and accordingly not waivable) in others. Although Dominguez may find this result odd, it flows naturally from the long standing and much cited interpretation by the Michigan Supreme Court in O’Brien of the SOR as “one of limitation and one of repose.” O’Brien, 299 N.W.2d at 341. A statute of limitations focuses on time measured from an injury; a statute of repose rests on the time from some initiating event unrelated to an injury. That Dominguez may view this distinction as anomalous is not something that this court can remedy. Because the SOR, as raised in this case, is by all indications not a waivable affirmative defense under Michigan law, the district court correctly held that, in the present case, the Michigan SOR was not an affirmative defense governed by Rule 8(c) and could therefore be brought in a later 12(b)(6) motion. Issue Preclusion in Roskam’s Case Roskam contends that even if the district court was correct in holding that APV did not waive its SOR defense by failing to comply with Rule 8(c), the court still erred in finding that the statutory prerequisites to coverage by the SOR existed in this case. The parties do not dispute that in order for the SOR to apply, (1) six years must have elapsed between the installation of the oven and the fire allegedly caused by its improper installation, (2) APV must have been acting as a contractor, (3) the installation of the oven must have been" }, { "docid": "6498775", "title": "", "text": "exercising diversity of citizenship jurisdiction in the District of Massachusetts, should apply the Connecticut statute of repose to deny a third-party claim of contribution and indemnification in this products liability action. IV. DISCUSSION A federal court sitting in diversity jurisdiction applies the substantive law of the forum state, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), including its choice of law rules. Klaxon Co. v. Stentor Elec. Mfg., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Statutes of repose are, under federal law, substantive in nature. See Arrieta-Gimenez v. Arrieta-Negron, 859 F.2d 1033, 1036 (1st Cir.1988). Accordingly, this Court looks toward Massachusetts law. Since the analysis of Massachusetts law may involve a choice of law, this Court first seeks to determine whether there is a legislative directive, or “borrowing statute,” as to what sovereign should supply the law. See Vaughn v. J.C. Penney Co., 822 F.2d 605, 611 (6th Cir.1987); see also Restatement (Second) of Conflict of Laws (hereinafter “Second Restatement”) § 6(1) (1969) (“A court ... will follow a statutory directive of its own state on choice of law”). Leach argues, quite correctly, that Mass.Gen.L. ch. 260, § 9 is just such a borrowing statute. Leach is incorrect, however, in its assertion that the borrowing statute applies in this case. The statute provides that “no action shall be brought by any person upon a cause of action which was barred by the laws of any state or country while he resided therein.” Mass.Gen.L. ch. 260, § 9. The claims put in issue by this motion are not the primary, first-party claims of the Connecticut plaintiffs, but rather the third-party derivative claims of Siegel, the Massachusetts defendant. Since the statute of repose is a Connecticut law, and Siegel is a Massachusetts resident, Siegel’s claims are not barred by the laws of its state, and the borrowing statute does not by its terms apply. Having determined that there is no applicable legislative directive, the Court must now look to the forum state’s choice of law method. This analysis requires the" }, { "docid": "9578542", "title": "", "text": "(10th Cir.1984); McCoy v. Wesley Hospital and Nurse Training School, 188 Kan. 325, 362 P.2d 841 (1961). In the present action, the plaintiffs claim is not grounded on a claim of fraud. The original complaint makes claims for recovery based on negligence, failure to warn, breach of implied warranty, and strict liability. Nor does it make any allegation of an affirmative inducement or act causing the plaintiff to delay the filing of the present claim. However, the court concludes that the general defense provided by K.S.A. 60-513(b) is not available to the defendants in the present case. The ten-year provision contained in K.S.A. 60-513(b) represents a statute of repose rather than a statute of limitation, and thus a substantive rule of law. Thus, the defendants’ stipulation to apply Nebraska substantive law precludes the use of K.S.A. 60-513(b) as a defense in the present action. Statutes of limitation and repose may be distinguished both by their method of operation and their underlying purpose. Although the two terms have traditionally been used interchangeably, in recent years the term “statute of repose” has been used to distinguish ordinary statutes of limitation from those statutes which begin to run “at a time unrelated to the traditional accrual of the cause of action.” F. McGovern, The Variety, Policy and Constitutionality of Product Liability Statutes of Repose, 30 Am.U.L.Rev. 579, 584 (1981). Statutes of repose run from an arbitrary event such as the date of a product’s purchase, and do not use the date of injury as a factor in computing the limitation period. Statutes of limitation, on the other hand, generally “set much shorter time periods which run from the time the cause of action accrues.” Wayne v. Tennessee Valley Authority, 730 F.2d 392, 401-402 (5th Cir. 1984), cert. denied, 469 U.S. 1159, 105 S.Ct. 908, 83 L.Ed.2d 922 (1985) (citing McGovern). See Myers v. Hayes Intern. Corp., 701 F.Supp. 618 (M.D.Tenn.1988). The distinction between statutes of limitation and statutes of repose has been carefully drawn in a series of North Carolina decisions. In Trustees of Rowan Technical College v. J. Hyatt Hammond Associates, Inc.," }, { "docid": "8002848", "title": "", "text": "party’s responsive ’pleading”); MCR 2.111(F)(3)(a) (listing affirmative defenses, including a statute of limitations). However, the defense of “failure to state a claim on which relief can be granted” is discussed in a completely separate subsection of the Rules discussing general defenses. See MCR 2.111(F)(2). It therefore can be reasoned that under the Michigan Rules, the defense of failure to state a claim is distinct from an affirmative defense. Since the Michigan Supreme Court has made clear that the effect of the SOR is to “prevent[] a cause of action from ever accruing,” thereby leaving the plaintiff with “literally ... no cause of action,” O’Brien, 299 N.W.2d at 341 (internal quotations omitted), it is likely that the Michigan Court would read the SOR as a defense of failure to state a claim, rather than as an affirmative defense. While, as mentioned above, the Michigan courts have never explicitly held such, the Delaware Supreme Court has done so with respect to Delaware’s substantively identical statute of repose for improvements to real property. That court’s reasoning is on point and therefore persuasive, because in holding that the Delaware statute is not a waivable affirmative defense, the Delaware court relied precisely on the fact that the statute in question extinguished the plaintiffs cause of action before it accrued. The court wrote: While the running of a statute of limitations will nullify a party’s remedy, the running of a statute of repose will extinguish both the remedy and the right. The statute of limitations is therefore a procedural mechanism, which may be waived. On the other hand, the statute of repose is a substantive provision which may not be waived because the time limit expressly qualifies the right which the statute creates. Cheswold Volunteer Fire Co., 489 A.2d at 421. Given the fact that the Michigan Supreme Court has characterized the SOR similarly, it appears likely that it would hold similarly that the SOR, when operating as a statute of repose, is not a waivable affirmative defense. None of Roskam’s or Dominguez’s arguments to the contrary are persuasive. For instance, Roskam points out that the" }, { "docid": "3778063", "title": "", "text": "of repose in this case. In reevaluating its decision, the court wrote: Although the Court originally permitted a tolling of the statute of repose between the filing of the motion for leave to amend the complaint (March 10, 1999) and the filing of the amended complaint (April 23, 1999) , ... such tolling of a statute of repose was improper. The plaintiffs did not file a claim against Dr. Gross before the period of repose expired and therefore any such claim had already been irretrievably extinguished. The claim against Dr. Gross was dismissed on January 21, 2000. II. The district court had diversity jurisdiction in this matter pursuant to 28 U.S.C. § 1332, requiring it to apply the substantive law of Massachusetts. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Catex Vitol Gas, Inc. v. Wolfe, 178 F.3d 572, 576 (1st Cir.1999). The Massachusetts laws at issue have been deemed statutes of repose. See McGuinness v. Cotter, 412 Mass. 617, 591 N.E.2d 659, 663 (1992). Although the Massachusetts courts have not explicitly characterized the repose statutes as substantive law, Cosme v. Whitin Machine Works, Inc., 417 Mass. 643, 632 N.E.2d 832, 834 (1994) (“[Statutes of repose are not clearly procedural .... ”), “[a] mass of authority treats statutes of repose as substantive rather than procedural.” Pink-ham v. Collyer Insulated Wire Co., Civ. A. 92-0426B, 1994 U.S. Dist. LEXIS 21490 at *17-*18, 1994 WL 385375 (D.R.I.1994) (citing cases to support a finding that “[a] mass of authority treats statutes of repose as substantive rather than procedural”); see also Romani v. Cramer, Inc., 992 F.Supp. 74, 76 (D.Mass.1998) (“[Statutes of repose are substantive in nature under federal law.”); Alves v. Siegel’s Broadway Auto Parts, Inc., 710 F.Supp. 864, 869 (D.Mass.1989) (reasoning that the Massachusetts courts would find statutes of repose to be substantive in nature because they “relate to the very existence of the cause of action itself.”). We agree with this analysis. Therefore, pursuant to the law of Massachusetts, we must answer two questions: (1) when did the statutes of repose begin to" }, { "docid": "8002843", "title": "", "text": "the district court erred in looking to Michigan law in order to discern the proper nature of the SOR, because the Federal Rules of Civil Procedure, rather than state law, dictate the procedures by which defenses must be asserted in federal court. Roskam asserts correctly that in federal court, federal procedural rules must be applied even if they differ from otherwise applicable state rules and even if the difference is outcome determinative. However, Roskam mischaracterizes the question dealt with by the district court in this case— namely, which of two different federal rules to apply — Rule 8(c) or 12(b)(6). In order to answer this question, the district court properly looked to Michigan law to determine how M.C.L. § § 600.5839 operates. If it operates as an affirmative defense, then it would have had to be raised in APV’s answer and it was waived in this case. However, if it operates to prevent a claim from arising in the first place, then Rule 12(b)(6) applies, as it could leave Roskam unable to state a claim against APV. Cases from other circuits make clear that the district court was correct in this case to look to Michigan state law to determine whether or not the SOR is an affirmative defense for the purposes of Rule 8(c). See, e.g., Troxler v. Owens-Illinois, Inc. 717 F.2d 530, 532 (11th Cir.1983) (holding in a diversity case that “[djetermining whether a contention is an affirmative defense for rule 8(c) purposes is a matter of state law.”); Morgan Guaranty Trust Co. v. Blum, 649 F.2d 342, 344 (5th Cir.1981) (“In diversity of citizenship actions, state law defines the nature of defenses, but the Federal Rules of Civil Procedure provide the manner and time in which defenses are raised and when waiver occurs.”); cf. Hayes v. General Motors Corp., No. 95-5713, 1996 WL 452916, at *4 (6th Cir. Aug.8, 1996) (though not deciding a Rule 8(c) issue, the court looked to a Tennessee state case to determine the nature of a state statute of repose in order to decide a different waiver issue). Having determined that the" }, { "docid": "8002842", "title": "", "text": "then proffer a reason why the plaintiff still can not recover. According to Roskam, the SOR is therefore a defense of avoidance and must be covered by Rule 8(c). This argument is not helpful, because the fact that the SOR can be interpreted to operate as a defense of avoidance does nothing to tell us whether it should be so interpreted. In fact, the district court in this case and other courts have just as persuasively interpreted statutes of repose as depriving plaintiffs of the ability to state a claim, thereby making the SOR an appropriate basis for a 12(b)(6) motion. See, e.g., Hayes v. General Motors Corp., No. 95-5713, 1996 WL 452916 (6th Cir. Aug.8, 1996) (holding that a Tennessee product-liability statute of repose was properly raised in a Rule 12(b)(6) motion); Cheswold Volunteer Fire Co. v. Lambertson Constr. Co., 489 A.2d 413 (Del.1985) (holding that a Delaware statute similar to the SOR in this case was not waived by the defendant’s failure to plead it as an affirmative defense). Next, Roskam asserts that the district court erred in looking to Michigan law in order to discern the proper nature of the SOR, because the Federal Rules of Civil Procedure, rather than state law, dictate the procedures by which defenses must be asserted in federal court. Roskam asserts correctly that in federal court, federal procedural rules must be applied even if they differ from otherwise applicable state rules and even if the difference is outcome determinative. However, Roskam mischaracterizes the question dealt with by the district court in this case— namely, which of two different federal rules to apply — Rule 8(c) or 12(b)(6). In order to answer this question, the district court properly looked to Michigan law to determine how M.C.L. § § 600.5839 operates. If it operates as an affirmative defense, then it would have had to be raised in APV’s answer and it was waived in this case. However, if it operates to prevent a claim from arising in the first place, then Rule 12(b)(6) applies, as it could leave Roskam unable to state a claim" }, { "docid": "15801168", "title": "", "text": "merely colorable, or is not significantly probative, summary judgment may be granted.” 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). See Catrett, 477 U.S. at 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The evidence itself need not be the sort admissible at trial. Ashbrook v. Block, 917 F.2d 918, 921 (6th Cir.1990). However, the evidence must be more than the nonmovant’s own pleadings and affidavits. Id. III. Analysis The sole question presently before this Court and raised by defendant in its motion for summary judgment is whether plaintiffs claims are barred by Michigan’s statute of repose, M.C.L. § 600.5839. This case being premised on diversity of citizenship, the Court is required to apply the substantive law of the state in which it sits. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). Accordingly, Michigan law must be applied to determine the viability of plaintiffs claims. “[T]he question whether [a] claim is statutorily barred is one of law for the Court.” Witherspoon v. Guilford, 203 Mich.App. 240, 243, 511 N.W.2d 720 (1994) (citing Smith v. Quality Const. Co., 200 Mich.App. 297, 299, 503 N.W.2d 753 (1993)). Defendant argues that Michigan’s statute of repose applies in the instant case to preclude plaintiffs claims. Michigan Compiled Laws Section 600.5839 governs “[a]ctions against architects, professional engineers or contractors arising from improvements to real property, actions against land surveyors; limitation of actions; definitions; application of amendments.” Pursuant to that Section, [n]o person may maintain any action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury, against any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of the improvement, or against any contractor making the improvement, more than 6 years" }, { "docid": "15801167", "title": "", "text": "S.Ct. 993, 8 L.Ed.2d 176 (1962); Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir.1984). The movant bears the burden of demonstrating the absence of all genuine issues of material fact. See Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir.1986). This burden “may be discharged by showing ... that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party discharges that burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine triable issue. Fed.R.Civ.Proc. 56(e); Gregg, 801 F.2d at 861. To create a genuine issue of material fact, however, the nonmovant must do more than present some evidence on a disputed issue. As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., “[t]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the [nonmov-ant’s] evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). See Catrett, 477 U.S. at 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The evidence itself need not be the sort admissible at trial. Ashbrook v. Block, 917 F.2d 918, 921 (6th Cir.1990). However, the evidence must be more than the nonmovant’s own pleadings and affidavits. Id. III. Analysis The sole question presently before this Court and raised by defendant in its motion for summary judgment is whether plaintiffs claims are barred by Michigan’s statute of repose, M.C.L. § 600.5839. This case being premised on diversity of citizenship, the Court is required to apply the substantive law of the state in which it sits. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). Accordingly, Michigan law must be applied to determine the viability of plaintiffs claims." }, { "docid": "8002849", "title": "", "text": "point and therefore persuasive, because in holding that the Delaware statute is not a waivable affirmative defense, the Delaware court relied precisely on the fact that the statute in question extinguished the plaintiffs cause of action before it accrued. The court wrote: While the running of a statute of limitations will nullify a party’s remedy, the running of a statute of repose will extinguish both the remedy and the right. The statute of limitations is therefore a procedural mechanism, which may be waived. On the other hand, the statute of repose is a substantive provision which may not be waived because the time limit expressly qualifies the right which the statute creates. Cheswold Volunteer Fire Co., 489 A.2d at 421. Given the fact that the Michigan Supreme Court has characterized the SOR similarly, it appears likely that it would hold similarly that the SOR, when operating as a statute of repose, is not a waivable affirmative defense. None of Roskam’s or Dominguez’s arguments to the contrary are persuasive. For instance, Roskam points out that the Michigan Court of Appeals has written, in the context of a choice of law question, that the SOR “affect[s] only procedural rights .... [i]t does not impair substantive rights.” Cliffs Forest Products Co. v. Al Disdero Lumber Co., 144 Mich.App. 215, 226, 375 N.W.2d 397, 402 (Mich.Ct.App. 1985). Roskam posits this as evidence that the Michigan courts view the SOR as merely a procedural defense that blocks a cause of action, rather than a substantive statute that extinguishes a cause of action before it accrues. However, a lower state court’s interpretation of a state statute does not control over that of the state Supreme Court, and the Michigan Supreme Court in O’Brien clearly held that the SOR extinguished the substantive cause of action. Indeed, the Michigan Court of Appeals in Cliffs Forest Products Co. cites the O’Brien case for the proposition that the SOR affects procedural rights; however, nowhere in O’Brien does the Michigan Supreme Court discuss procedural versus substantive defenses. In fact, the O’Brien court quoted approvingly language from the New Jersey Supreme Court" }, { "docid": "7770964", "title": "", "text": "removed the case to federal court on diversity grounds. Spence died of health complications associated with AIDS on March 24, 1992. This suit is currently being carried on by his surviving spouse pursuant to Tenn. Code Ann. § 20-5-106(a). The district court initially denied Miles’ motion for summary judgment, rejecting defendant’s claim that plaintiff had failed to create a question of fact as to causation. On reconsideration, however, the court ruled that (1) the Tennessee AIDS statute could not be applied retrospectively to hold Miles liable; (2) assuming it did apply, the most applicable statute of limitations, the statute of repose for products liability actions, barred the statutory claim as well as plaintiffs negligence claims; and (3) the statute of repose does not violate equal protection by differentiating between asbestos and AIDS-related claims. This timely appeal followed. III. Standard of Review Because this is a diversity action, we look to the forum state’s choice of law provision. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Electric Power Bd. of Chattanooga v. Monsanto Co., 879 F.2d 1368, 1375 (6th Cir.1989); cert. denied, 493 U.S. 1022, 110 S.Ct. 724, 107 L.Ed.2d 743 (1990); Tennessee River Pulp & Paper Co. v. Eichleay Corp., 708 F.2d 1055, 1057 (6th Cir.1983). Here, the parties agree that the substantive law of Tennessee applies. If the state courts have not addressed the issues presented, “a federal court is obligated to express its best judgment, based on all the available information, as to what the courts in that state would hold if they were faced with the issue.” Eichleay Corp., 708 F.2d at 1057 (citations omitted). Further, the procedural law of the forum generally applies, including its statute of limitations. Electric Power Bd., 879 F.2d at 1375. We review the district court’s grant of summary judgment de novo. Faughender v. City of North Olmsted, Ohio, 927 F.2d 909, 912 (6th Cir.1991). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56." }, { "docid": "8002844", "title": "", "text": "against APV. Cases from other circuits make clear that the district court was correct in this case to look to Michigan state law to determine whether or not the SOR is an affirmative defense for the purposes of Rule 8(c). See, e.g., Troxler v. Owens-Illinois, Inc. 717 F.2d 530, 532 (11th Cir.1983) (holding in a diversity case that “[djetermining whether a contention is an affirmative defense for rule 8(c) purposes is a matter of state law.”); Morgan Guaranty Trust Co. v. Blum, 649 F.2d 342, 344 (5th Cir.1981) (“In diversity of citizenship actions, state law defines the nature of defenses, but the Federal Rules of Civil Procedure provide the manner and time in which defenses are raised and when waiver occurs.”); cf. Hayes v. General Motors Corp., No. 95-5713, 1996 WL 452916, at *4 (6th Cir. Aug.8, 1996) (though not deciding a Rule 8(c) issue, the court looked to a Tennessee state case to determine the nature of a state statute of repose in order to decide a different waiver issue). Having determined that the district court properly looked to Michigan law to determine how to treat the SOR, this court must now review the district court’s holding that Michigan law reads the SOR as preventing a cause of action from ever arising and should therefore not be waiva-ble as a mere affirmative defense. Roskam correctly points out that no Michigan case has ever specifically addressed the issue of how to interpret the SOR with respect to waiver. Apparently recognizing this, the district court relied on a Michigan Supreme Court case discussing the SOR in another context in order to discern its nature. In O’Brien v. Hazelet & Erdal, 410 Mich. 1, 299 N.W.2d 336 (1980), the Michigan Supreme Court examined the SOR to determine whether it violated the plaintiffs’ due process rights by barring a cause of action before the elements of the cause of action were present. In holding that the SOR was constitutional, the court reasoned that the SOR operates as both a statute of limitations and a statute of re pose. Id. at 341. If the" }, { "docid": "6498774", "title": "", "text": "truck, was domiciled, and (iv) where the injury occurred; (2) Massachusetts, the state (i) of defendant Siegel’s incorporation and principal place of business, (ii) from which the compacting unit was ordered and to which it was delivered by Leach, (iii) in which the sale of the trash truck from Siegel to the decedent’s employer took place, and (iv) in which this federal court is exercising its diversity of citizenship jurisdiction; and (3) the United States, which is providing the forum for this action. The movant Leach supports its claim of non-liability with the following language of the Connecticut statute: [n]o product liability claim ... may be brought against any party nor may any party be impleaded ... later than ten years from the date that the party last parted with possession or control of the product. Conn.Gen.Stat. § 52-577a(a) (emphasis supplied). It is undisputed that, if applicable, this law would preclude liability of Leach. It is also undisputed that no other involved jurisdiction has such a law. The issue, then, is whether a federal court, exercising diversity of citizenship jurisdiction in the District of Massachusetts, should apply the Connecticut statute of repose to deny a third-party claim of contribution and indemnification in this products liability action. IV. DISCUSSION A federal court sitting in diversity jurisdiction applies the substantive law of the forum state, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), including its choice of law rules. Klaxon Co. v. Stentor Elec. Mfg., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Statutes of repose are, under federal law, substantive in nature. See Arrieta-Gimenez v. Arrieta-Negron, 859 F.2d 1033, 1036 (1st Cir.1988). Accordingly, this Court looks toward Massachusetts law. Since the analysis of Massachusetts law may involve a choice of law, this Court first seeks to determine whether there is a legislative directive, or “borrowing statute,” as to what sovereign should supply the law. See Vaughn v. J.C. Penney Co., 822 F.2d 605, 611 (6th Cir.1987); see also Restatement (Second) of Conflict of Laws (hereinafter “Second Restatement”) § 6(1) (1969)" }, { "docid": "14832165", "title": "", "text": "liability actions was substantive rather than procedural; noting that the Michigan Court Rules do not include statute of repose in nonexhaustive list of affirmative defenses). As the district court also noted, because Defendants’ answer asserted the statute of repose, we need not decide whether Tenn. R. Civ. P. 8.03 would apply retroactively. See Wyeth, 540 F.Supp.2d at 942 n. 7. WHITE, Circuit Judge, concurring. Reluctantly, I concur in the affirmance. I write separately to further address the Multidistrict Litigation (MDL) settlement (Settlement Agreement), and to observe that the Eastern District of Pennsylvania would have been much better suited to decide this motion. As the majority explained, the Judicial Panel on Multidistrict Litigation (JPML) established MDL 1203 in the Eastern District of Pennsylvania. The instant case was initially transferred to the MDL court and that court oversaw pretrial proceedings in this ease before remanding it back to the Eastern District of Tennessee in July 2007. On January 14, 2008, Wyeth moved for summary judgment based on the Tennessee statute of repose (TSOR). In addition to her arguments that Wyeth had waived the TSOR defense by failing to timely assert it and that Georgia law should apply, Montgomery argued that her PPH claim was preserved by the MDL and Settlement Agreement. Montgomery was a plaintiff in the MDL. The complaint in that action was filed within the time allowed by the TSOR. While PPH claims were not “settled claims,” they were clearly part of the litigation until settlement, and the MDL court expressly exercised jurisdiction over those claims in approving the settlement. Further the Settlement Agreement defined PPH and addressed the rights of PPH claimants. Thus, any assessment of the timeliness of Montgomery’s PPH claim necessitates an examination of the nationwide Class Action Settlement Agreement, approved by the Pennsylvania court. Both the Settlement Agreement and Pretrial Order (PTO) 1415 state that the Eastern District of Pennsylvania “retains continuing and exclusive jurisdiction over this action and each of the Parties ... to administer, supervise, interpret and enforce the Settlement in accordance with its terms.” In re Diet Drugs, Nos. 1203, 99-20593, 2000 WL" }, { "docid": "14832156", "title": "", "text": "conditions the anticipated life of the product on the expiration date imposed by the manufacturer. This reading of the statute is consistent with the legislative intent. As this Court has noted, the statute of repose operates when “parties may be ignorant about the particular time limitations involved. Thus, a delay, even without knowledge of the hazard involved in the delay, may preclude the bringing of an otherwise meritorious claim.” Mathis, 719 F.2d at 140 (holding that the application of ten-year limitation in TSOR does not violate a party’s due process rights). However harsh the result, this is a decision of the Tennessee legislature. “Statutes of limitation find their justification in necessity and convenience rather than logic.... They represent a public policy about the privilege to litigate.” Id. (quoting Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945)). Our decision in Spence v. Miles Lab., 37 F.3d 1185 (6th Cir.1994), is virtually identical. There we held the product liability claim was barred by the statute of repose because the expiration date on a package of blood (which was infected with AIDS and was transferred to the plaintiff) was June 5, 1987, and the plaintiff had filed his product liability claim more than one year after that date, despite the fact that he filed his action less than one year after discovering he had AIDS. Id. at 1188, 1190. As the district court held, Spence controls the result in this case. D. Waiver Last, Montgomery contends that the district court erred in finding that Defendants had not waived their statute of repose defense. Montgomery argues that Defendants did not raise it in their Answer and waited more than thirty-two months after the action was filed to assert it. The district court ruled that Defendants sufficiently pleaded the statute of repose defense because their Answer states that “Plaintiffs causes of action are barred in whole or in part by the applicable statutes of limitations and repose,” and their affirmative defenses include the “defenses of the Tennessee Products Liability Act of 1978, as codified in [Tenn.Code Ann.]" }, { "docid": "8002851", "title": "", "text": "that the effect of the statute it was reviewing was “to define substantive rights.” O’Brien, 299 N.W.2d at 341 n. 19. For his part, Dominguez advances two reasons that the SOR should be read to be an affirmative defense under Michigan law. First, Dominguez contends that the SOR fits into the definition of an affirmative defense set out by the Michigan Court Rules and therefore should be deemed such by this court. In particular, Dominguez notes that MCR 2.111(F)(3) includes within the heading “Affirmative Defenses” “a defense that by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the opposing party, in whole or in part,” and “a ground of defense that, if not raised in the pleading, would be likely to take the adverse party by surprise.” Dominguez argues that the SOR seeks to avoid the legal effect of his claim and would be likely to take a plaintiff by surprise, and therefore should be deemed an affirmative defense under Michigan law. This argument, however, is unhelpful in the same manner as Roskam’s argument that the SOR is a defense of “avoidance” and is therefore facially covered by Fed.R.Civ.P. 8(c); the mere fact that the SOR can be interpreted to fit within the words of the definition does not help determine whether it therefore should be so interpreted. Dominguez’s second argument is similarly unpersuasive. He claims that it would lead to absurd results to interpret the SOR as a statute of limitations (and thus an affirmative defense that is waived if not raised in the responsive pleading) in some cases and as a statute of repose (and not an affirmative defense and accordingly not waivable) in others. Although Dominguez may find this result odd, it flows naturally from the long standing and much cited interpretation by the Michigan Supreme Court in O’Brien of the SOR as “one of limitation and one of repose.” O’Brien, 299 N.W.2d at 341. A statute of limitations focuses on time measured from an injury; a statute of repose rests on the time from some initiating event" }, { "docid": "14832164", "title": "", "text": "Ann. § 29-28-102 (West 2008). . As noted by the district court, even if Defendants had not relied on the statute of repose in their answer, the TSOR was probably not a waivable affirmative defense under Tennessee law. Although federal law governs procedural rules, including when waiver occurs, state law defines the nature of defenses. Roskam Baking Co., Inc. v. Lanham Mach. Co., 288 F.3d 895, 901 (6th Cir.2002). The Tennessee Supreme Court has held that, unlike a statute of limitations, a statute of repose is substantive rather than procedural. A statute of limitations nullifies a party's remedy, but a statute of repose extinguishes both the right and the remedy. See Cronin, 906 S.W.2d at 913 (agreeing that statutes of repose are substantive as opposed to procedural). However, as the district court also noted, in 2006, Tennessee Rule of Civil Procedure 8.03 was amended to add the statute of repose as an affirmative defense that must be pleaded in an answer. Cf. Roskam, 288 F.3d at 902 (concluding that Michigan's statute of repose for product liability actions was substantive rather than procedural; noting that the Michigan Court Rules do not include statute of repose in nonexhaustive list of affirmative defenses). As the district court also noted, because Defendants’ answer asserted the statute of repose, we need not decide whether Tenn. R. Civ. P. 8.03 would apply retroactively. See Wyeth, 540 F.Supp.2d at 942 n. 7. WHITE, Circuit Judge, concurring. Reluctantly, I concur in the affirmance. I write separately to further address the Multidistrict Litigation (MDL) settlement (Settlement Agreement), and to observe that the Eastern District of Pennsylvania would have been much better suited to decide this motion. As the majority explained, the Judicial Panel on Multidistrict Litigation (JPML) established MDL 1203 in the Eastern District of Pennsylvania. The instant case was initially transferred to the MDL court and that court oversaw pretrial proceedings in this ease before remanding it back to the Eastern District of Tennessee in July 2007. On January 14, 2008, Wyeth moved for summary judgment based on the Tennessee statute of repose (TSOR). In addition to her" }, { "docid": "14832163", "title": "", "text": "Pondimin through third-party advertising in Tennessee, and it was lawfully sold in at least 700 Tennessee pharmacies during most of the time Montgomery used it. It became legal to prescribe Fenphen in Tennessee on March 27, 1997, two months after Montgomery started taking Pondimin. . Assuming that the Nationwide Settlement Agreement did not exist, any claim under Tennessee law relating to the use of Pondimin would be barred unless brought by September 2001. Had Montgomery opted out of the Brown class, she still would have had to comply with Tennessee’s statute of repose. Had she opted out by the March 2000 deadline and brought suit after her diagnosis in 2005, her claim would still be barred by the statute of repose. . Tenn. Code Ann. § 29-28-102 provides in pertinent part: (1) \"Anticipated life.” The anticipated life of a product shall be determined by the expiration date placed on the product by the manufacturer when required by law but shall not commence until the date the product was first purchased for use or consumption!.] Tenn.Code Ann. § 29-28-102 (West 2008). . As noted by the district court, even if Defendants had not relied on the statute of repose in their answer, the TSOR was probably not a waivable affirmative defense under Tennessee law. Although federal law governs procedural rules, including when waiver occurs, state law defines the nature of defenses. Roskam Baking Co., Inc. v. Lanham Mach. Co., 288 F.3d 895, 901 (6th Cir.2002). The Tennessee Supreme Court has held that, unlike a statute of limitations, a statute of repose is substantive rather than procedural. A statute of limitations nullifies a party's remedy, but a statute of repose extinguishes both the right and the remedy. See Cronin, 906 S.W.2d at 913 (agreeing that statutes of repose are substantive as opposed to procedural). However, as the district court also noted, in 2006, Tennessee Rule of Civil Procedure 8.03 was amended to add the statute of repose as an affirmative defense that must be pleaded in an answer. Cf. Roskam, 288 F.3d at 902 (concluding that Michigan's statute of repose for product" }, { "docid": "8002841", "title": "", "text": "a motion for summary judgment, or at trial on the merits. See Fed.R.Civ.P. 12(h)(2) (“A defense of failure to state a claim upon which relief can be granted ... may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.”). In challenging the district court’s holding, Roskam argues that, regardless of the nature of the defense under Michigan law, the SOR is exactly the type of defense of “avoidance or affirmative defense” facially covered by Rule 8(c). Fed.R.Civ.P. 8(c). As such, Roskam contends, the SOR must be raised in the defendant’s answer, in accordance with the dictates of Rule 8(c); since it was not, Roskam argues that APV waived its SOR defense. To support its argument, Roskam first contends that, the operation of the SOR illustrates that it is a defense of “avoidance” and is therefore covered by Rule 8(c). Roskam explains that the SOR allows a defendant to admit all of the allegations in a plaintiffs complaint, but then proffer a reason why the plaintiff still can not recover. According to Roskam, the SOR is therefore a defense of avoidance and must be covered by Rule 8(c). This argument is not helpful, because the fact that the SOR can be interpreted to operate as a defense of avoidance does nothing to tell us whether it should be so interpreted. In fact, the district court in this case and other courts have just as persuasively interpreted statutes of repose as depriving plaintiffs of the ability to state a claim, thereby making the SOR an appropriate basis for a 12(b)(6) motion. See, e.g., Hayes v. General Motors Corp., No. 95-5713, 1996 WL 452916 (6th Cir. Aug.8, 1996) (holding that a Tennessee product-liability statute of repose was properly raised in a Rule 12(b)(6) motion); Cheswold Volunteer Fire Co. v. Lambertson Constr. Co., 489 A.2d 413 (Del.1985) (holding that a Delaware statute similar to the SOR in this case was not waived by the defendant’s failure to plead it as an affirmative defense). Next, Roskam asserts that" }, { "docid": "3778062", "title": "", "text": "complaint to have been properly filed on March 10, 1999. Finding that the motion seeking leave to amend would have been filed prior to the expiration of the repose period but for the violation of Local Rule 15.1, the court ruled that “the time that elapsed between the filing of the motion to amend [March 10, 1999] and the filing of the amended complaint [April 26, 1999] is tolled for the purpose of the applicable statutes.” In making this ruling, the court apparently concluded that only the filing of the amended complaint itself, rather than the filing of any motion to amend, would constitute the commencement of an action for the purpose of the statutes of repose. Dr. Gross filed a motion for reconsideration of the denial of the motion to dismiss. In his memorandum in support of the motion, Dr. Gross urged the court to “more fully address the issue of the determination of the date of ‘commencement’ of the Plaintiffs’ action” and challenged the court’s authority to toll the running of the statutes of repose in this case. In reevaluating its decision, the court wrote: Although the Court originally permitted a tolling of the statute of repose between the filing of the motion for leave to amend the complaint (March 10, 1999) and the filing of the amended complaint (April 23, 1999) , ... such tolling of a statute of repose was improper. The plaintiffs did not file a claim against Dr. Gross before the period of repose expired and therefore any such claim had already been irretrievably extinguished. The claim against Dr. Gross was dismissed on January 21, 2000. II. The district court had diversity jurisdiction in this matter pursuant to 28 U.S.C. § 1332, requiring it to apply the substantive law of Massachusetts. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Catex Vitol Gas, Inc. v. Wolfe, 178 F.3d 572, 576 (1st Cir.1999). The Massachusetts laws at issue have been deemed statutes of repose. See McGuinness v. Cotter, 412 Mass. 617, 591 N.E.2d 659, 663 (1992). Although the" } ]

[ { "docid": "22777753", "title": "", "text": "as all other officers, citizens and subjects of that government. This principle has always been upheld by this court, and has been affirmed under a great variety of circumstances.” Jones v. United States, 137 U. S. 202, 212. It is also the result of the interpretation by this court of the principles of international law that when a government which originates in revolution or revolt is recognized by the political department of our government as the de jure government of the country in which it is established, such, recognition is retroactive in effect and validates all the actions and conduct of the government so recognized from the commencement of its existence. Williams v. Bruffy, 96 U. S. 176, 186; Underhill v. Hernandez, 168 U. S. 250, 253. See s. c. 65 Fed. Rep. 577. To these principles we must add that: “Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason' of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.” Underhill v. Hernandez, 168 U. S. 250, 253; American Banana Co. v. United Fruit Co., 213 U. S. 347. Applying these principles of law to the case at bar, we have a duly commissioned military commander of what must be accepted as the legitimate government of Mexico, in the progress of a revolution, and when conducting active independent operations, seizing and selling in Mexico, as a military contribution, the property in controversy, at the time owned and in the possession of a citizen of Mexico, the assignor of the plaintiff in error. Plainly this was the action, in Mexico,. of the legitimate Mexican government when dealing with a Mexican citizen, and, as we have seen, for the soundest reasons, and upon repeated decisions of this court such action is not subject to reexamination and modification by the courts of this country. The principle that the conduct" } ]

[ { "docid": "2475535", "title": "", "text": "sovereign state of Panama, performed within the territory of Panama. Accordingly, these acts of state must be accepted by this Court as valid. Judicial inquiry into the law of the sovereign state underlying these acts is neither necessary nor appropriate: Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves. Underhill v. Hernandez, 168 U.S. 250, 252, 18 S.Ct. 83, 84, 42 L.Ed. 456 (1897). See also Oetjen v. Central Leather Co., 246 U.S. 297, 302-04, 38 S.Ct. 309, 310-11, 62 L.Ed. 726 (1918); Ricaud v. American Metal Co., 246 U.S. 304, 310, 38 S.Ct. 312, 314, 62 L.Ed. 733 (1918). Movants also challenge this Court’s Orders, and ask this Court to void the recognition extended by the President and the Executive Branch of the United States to the Delvalle government on several other grounds. They claim that such recognition is “an improper interference in the internal affairs of Panama” and is, therefore, in violation of the United Nations Charter and the Charter of the Organization of American States. First, movants ask this Court to take action which is clearly beyond its jurisdiction. As noted above, it is well-settled that all matters of recognition of a foreign government are political questions that fall exclusively within the province of the Executive Branch: What government is to be regarded here as representative of a foreign sovereign state is a political rather than a judicial question, and is to be determined by the political department of the government. Objections to its determination as well as to the underlying policy are to be addressed to it and not to the courts. Its action in recognizing a foreign government and in receiving its diplomatic representatives is conclusive on all domestic courts, which are bound to accept that determination, although they are free" }, { "docid": "7608271", "title": "", "text": "should have been disallowed in U. S. v. National City Bank, supra. The decision in that case is, therefore, precedent — though of moderate weight — that repudiation may not bar the set-off in this case. To that decision has been added the force of the distinction drawn in Guaranty Trust Co. v. U. S., supra, 304 U.S. at page 140, 58 S.Ct. at page 792, 82 L.Ed. 1224, “between the effect of our recognition of a foreign government with respect to its acts within its own territory prior to recognition, and the effect upon previous transactions consummated here between its predecessor and our own nationals”. (Emphasis added.) The impact of repudiation by a sovereign within its own territory is governed by the law which prevails in that territory. But obligations created here and here performable are governed by local law. Central Hanover Bank & Trust Co., D.C.S.D.N.Y.1936, 15 F.Supp. 927, affirmed 2 Cir., 84 F.2d 993, certiorari denied 299 U.S. 585, 57 S.Ct. 110, 81 L.Ed. 431. Repudiation by a foreign sovereign of obligations subject to our domestic law is effective only to the extent that its sovereign immunity shields it from suit. Wherever the shield of sovereign immunity is not available there is nothing to prevent our domestic law from taking its course. Here, if the set-off is appropriate, immunity is not available. Guaranty Trust Co. v. U. S., supra, 304 U.S. at page 134, 58 S.Ct. 785, 82 L.Ed. 1224; U. S. v. National City Bank, supra, 83 F.2d page 238. Nor can the repudiation he regarded as a revocation of the bank’s authority to pay the Notes for the account of the obligor. As already indicated, some time after the Soviet Government had repudiated the Treasury Notes, our Government cooperated in securing from the holders an extension of maturity, on request of the then recognized representatives of the Russian State. Relevant is the language of Guaranty Trust Co. v. U. S., supra, 304 U.S. at page 140, 58 S.Ct. at page 792, 82 L.Ed. 1224: “The very purpose of the recognition by our government is that" }, { "docid": "22323303", "title": "", "text": "Trust Co. v. United States, supra, 140. It accepts the acts of that government within its own territory as the acts of the sovereign, including its acts as a de facto government before recognition, see Underhill v. Hernandez, supra, 168 U. S. 250; Oetjen v. Central Leather Co., supra, 246 U. S. 297; Ricaud v. American Metal Co., supra, 246 U. S. 304. But, until now, recognition of a foreign government by this Government has never been thought to serve as a full faith and credit clause compelling obedience here to the laws and public acts of the recognized government with respect to property and transactions in this country. One could as well argue that by the Soviet Government’s recognition of our own Government, which accompanied the transactions now under consideration, it had undertaken to apply in Russia the New York law applicable to Russian property in New York. Cf. Ingenohl v. Olsen & Co., supra, 273 U. S. 541; Pacific Ins. Co. v. Industrial Comm’n, 308 U. S. 493, 501-02. In Guaranty Trust Co. v. United States, supra, this Court unanimously rejected the contention that the recognition of the Soviet Government operated to curtail or impair rights derived from the application of state laws and policy within the state’s own territory. It was argued by the Government that recognition operated retroactively, for the period of the de facto government, to set aside rights acquired in the United States in consequence of this Government’s prior recognition of the Russian. Provisional Government. This argument, we said, p. 140, “ignores the distinction between the effect of our recognition of a foreign government with respect to its acts within its own territory prior to recognition, and the effect upon previous transactions consummated here between its predecessor and our own nationals. The one operates only to validate to a limited extent acts of a de facto government which by virtue of the recognition, has become a government de jure. But it does not follow that recognition renders of no effect transactions here with a prior recognized government in conformity to the declared policy of" }, { "docid": "22323257", "title": "", "text": "or alter our foreign policy, serious consequences might ensue. The nation as a whole would be held to answer if a State created difficulties with a foreign power. Cf. Chy Lung v. Freeman, 92 U. S. 275, 279-280. Certainly, the conditions for “enduring friendship” between the nations, which the policy of recognition in this instance was de signed to effectuate, are not likely to flourish where, contrary to national policy, a lingering atmosphere of hostility is created by state action. Such considerations underlie the principle of Oetjen v. Central Leather Co., 246 U. S. 297, 302-303, that when a revolutionary government is recognized as a de jure government, “such recognition is retroactive in effect and validates all the actions and conduct of the government so recognized from the commencement of its existence.” They also explain the rule expressed in Underhill v. Hernandez, 168 U. S. 250, 252, that “the courts of one country will not sit in judgment on the acts of the government of another done within its own territory.” The action of New York in this case amounts in substance to a rejection of a part of the policy underlying recognition by this nation of Soviet Russia. Such power is not accorded a State in our constitutional system. To permit it would be to sanction a dangerous invasion of Federal authority. For it would “imperil the amicable relations between governments and vex the peace of nations.” Oetjen v. Central Leather Co., supra, p. 304. It would tend to disturb that equilibrium in our foreign relations which the political departments of our national government had diligently endeavored to establish. We repeat that there áre limitations on the sovereignty of the States. No State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively. It need not be so exercised as to conform to state laws or state policies, whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial" }, { "docid": "19644023", "title": "", "text": "belong to him, it is obligatory on the people and government of the Union.\" Ibid. Later, during the 1930's and 1940's, the Court addressed issues surrounding President Roosevelt's decision to recognize the Soviet Government of Russia. In United States v. Belmont, 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134 (1937), and Pink,315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796, New York state courts declined to give full effect to the terms of executive agreements the President had concluded in negotiations over recognition of the Soviet regime. In particular the state courts, based on New York public policy, did not treat assets that had been seized by the Soviet Government as property of Russia and declined to turn those assets over to the United States. The Court stated that it \"may not be doubted\" that \"recognition, establishment of diplomatic relations, ... and agreements with respect thereto\" are \"within the competence of the President.\" Belmont,301 U.S., at 330, 57 S.Ct. 758. In these matters, \"the Executive ha[s] authority to speak as the sole organ of th [e] government.\" Ibid.The Court added that the President's authority \"is not limited to a determination of the government to be recognized. It includes the power to determine the policy which is to govern the question of recognition.\" Pink, supra,at 229, 62 S.Ct. 552; see also Guaranty Trust Co.,304 U.S., at 137-138, 58 S.Ct. 785(The \"political department['s] ... action in recognizing a foreign government and in receiving its diplomatic representatives is conclusive on all domestic courts\"). Thus, New York state courts were required to respect the executive agreements. It is true, of course, that Belmontand Pinkare not direct holdings that the recognition power is exclusive. Those cases considered the validity of executive agreements, not the initial act of recognition. The President's determination in those cases did not contradict an Act of Congress. And the primary issue was whether the executive agreements could supersede state law. Still, the language in Pinkand Belmont,which confirms the President's competence to determine questions of recognition, is strong support for the conclusion that it is for the President alone to determine" }, { "docid": "22323302", "title": "", "text": "acts which, by the common understanding of English and American courts, are ordinarily deemed to be without extraterritorial force, and which, in any event, have never before been considered to restrict the power of the states to apply their own rules of law to foreign-owned property within their territory. As we decided in Guaranty Trust Co. v. United States, supra, 304 U. S. at 143, and as the opinion of the Court now appears to concede, there is nothing in any of the relevant documents “to suggest that the United States was to acquire or exert any greater rights than its transferor or that the President by mere executive action purported or intended to alter or diminish the rights of the [New York] debtor with respect to any assigned claims, or that the United States, as assignee, is to do more than the Soviet Government could have done after diplomatic recognition — that is, collect the claims in conformity to local law.” Recognition opens our courts to the recognized government and its nationals, see Guaranty Trust Co. v. United States, supra, 140. It accepts the acts of that government within its own territory as the acts of the sovereign, including its acts as a de facto government before recognition, see Underhill v. Hernandez, supra, 168 U. S. 250; Oetjen v. Central Leather Co., supra, 246 U. S. 297; Ricaud v. American Metal Co., supra, 246 U. S. 304. But, until now, recognition of a foreign government by this Government has never been thought to serve as a full faith and credit clause compelling obedience here to the laws and public acts of the recognized government with respect to property and transactions in this country. One could as well argue that by the Soviet Government’s recognition of our own Government, which accompanied the transactions now under consideration, it had undertaken to apply in Russia the New York law applicable to Russian property in New York. Cf. Ingenohl v. Olsen & Co., supra, 273 U. S. 541; Pacific Ins. Co. v. Industrial Comm’n, 308 U. S. 493, 501-02. In Guaranty Trust Co." }, { "docid": "22323304", "title": "", "text": "v. United States, supra, this Court unanimously rejected the contention that the recognition of the Soviet Government operated to curtail or impair rights derived from the application of state laws and policy within the state’s own territory. It was argued by the Government that recognition operated retroactively, for the period of the de facto government, to set aside rights acquired in the United States in consequence of this Government’s prior recognition of the Russian. Provisional Government. This argument, we said, p. 140, “ignores the distinction between the effect of our recognition of a foreign government with respect to its acts within its own territory prior to recognition, and the effect upon previous transactions consummated here between its predecessor and our own nationals. The one operates only to validate to a limited extent acts of a de facto government which by virtue of the recognition, has become a government de jure. But it does not follow that recognition renders of no effect transactions here with a prior recognized government in conformity to the declared policy of our own Government.” Even though the two governments might have stipulated for alteration by this Government of its municipal law, and the consequent surrender of the rights of individuals, the substance of the Court’s decision was that such an abdication of domestic law and policy is not a necessary or customary incident of recognition or fairly to be inferred from it. No more can recognition be said to imply a deprivation of the constitutional rights of states of the Union, and of individuals arising out of their laws and policy, which are binding on the Federal Government except as the act of recognition is accompanied by some affirmative exercise of federal power which purports to set them aside. Nor can I find in the surrounding circumstances or in the history of the diplomatic relations of the two countries any basis for saying that there was any policy of either to give a different or larger effect to recognition and the assignment than would ordinarily attach to them. It is significant that the account of the" }, { "docid": "22091727", "title": "", "text": "confiscated the hides. Villa, it appeared, had seized the hides while conducting independent operations under the Carranza government, which at the time of the seizure had made much progress in its revolution in Mexico. The government of the United States, after the trial of the case in the state court, had recognized the government of Carranza, first as the de jacto government of the Republic of Mexico, and later as the government de jure. This court held that the conduct of foreign relations was committed by the Constitution to the political departments of the government, and the propriety of what may be done in the exercise of this political power was not subject to judicial inquiry or decision; that who is the sovereign of a territory is not a judicial question, but one the determination of which by the political departments conclusively binds the courts; and that recognition by these departments is retroactive and validates all actions and conduct of the government so recognized from the commencement of its existence. “The principle,” we said, p. 303, “that the conduct of one independent government cannot be successfully questioned in the courts of another is as applicable to a case involving the title to property brought within the custody of a court, such as we have here, as it was held to be to the cases cited, in which claims for damages were based upon acts done in a foreign country, for it rests at last upon the highest considerations of international comity and expediency. To permit the validity of the acts of one sovereign State to be reexamined and perhaps condemned by the courts of another would very certainly ‘imperil the amicable relations between governments and vex the peace of nations.’ ” Ricaud v. American Metal Co., 246 U. S. 304, 308-309, 310, is to the same effect. In A. M. Luther v. James Sagor & Co., L. R. [1921] 3 K. B. 532, the English Court of Appeal expressly ap proved and followed our decision in the Oetjen case. The English case involved that part of the same decree of" }, { "docid": "22323288", "title": "", "text": "for decision.” Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 399; Mr. Justice Sutherland in Williams v. United States, 289 U. S. 553, 568. We have no concern here with the wisdom of the rules of law which the New York courts have adopted in this case or their consonance with the most enlightened principles of jurisprudence. State questions do not become federal questions because they are difficult or because we may think that the state courts have given wrong answers to them. The only questions before us are whether New York has constitutional authority to adopt its own rules of law defining rights in property located in the state, and, if so, whether that authority has been curtailed by the exercise of a superior federal power by recognition of the Soviet Government and acceptance of its assignment to the United States of claims against American nationals, including the New York property. I shall state my grounds for thinking that the pronouncements in the Belmont case, on which the Court relies for the answer to these questions, are without the support of reason or accepted principles of law. No one doubts that the Soviet decrees are the acts of the government of the Russian state, which is sovereign in its own territory, and that in consequence of our recognition of that government they will be so treated by our State Department. As such, when they affect property which was located in Russia at the time of their promulgation, they are subject to inquiry, if at all, only through our State Department and not in our courts. Underhill v. Hernandez, 168 U. S. 250; Oetjen v. Central Leather Co., 246 U. S. 297; Ricaud v. American Metal Co., 246 U. S. 304, 308-10; Salimoff & Co. v. Standard Oil Co., 262 N. Y. 220, 186 N. E. 679. But the property to which the New York judgment relates has at all relevant times been in New York in the custody of the Superintendent of Insurance as security for the policies of the insurance company, and is now in the" }, { "docid": "22554173", "title": "", "text": "in our courts only by that government which has been recognized by the political department of our own government as the authorized government of the foreign state. Jones v. United States, 137 U. S. 202, 212; Russian Government v. Lehigh Valley R. Co., 293 Fed. 133, 135, aff’d sub nom. Lehigh Valley R. Co. v. State of Russia, 21 F. (2d) 396, 409; Matter of Lehigh Valley R. Co., 265 U. S. 573; Russian S. F. S. Republic v. Cibrario, supra; Moore, International Law Digest, §§ 75, 78. What government is to be regarded here as representative of a foreign sovereign. state is a political rather than a judicial question* and is to be determined by the political department of the government Objections to its deter mination as well as to the underlying policy are to be addressed to it and not to the courts. Its action in recognizing a foreign government and in receiving its diplomatic representatives is conclusive on all domestic courts, which are bound to accept that determination, although they are free to draw for themselves its legal consequences in litigations pending before them. Jones v. United States, supra, 212; Agency of Canadian Car & F. Co. v. Amercan Can Co., 258 Fed. 363; Lehigh Valley R. Co. v. State of Russia, supra. We accept as conclusive here the determination of our own State Department that the Russian State was represented by the Provisional Government through its duly recognized representatives from March 16, 1917 to November 16, 1933, when the Soviet Government was recognized. There was at all times during that period a recog nized diplomatic representative of the Russian State to whom notice concerning its interests within the United States could be communicated, and to whom our courts were open for the purpose of prosecuting suits in behalf of the Russian State. In fact, during that period, suits were brought in its behalf in both the federal and state courts, which consistently ruled that the recognized Ambassador and Financial Attache were authorized to maintain them. We do'not stop to inquire what the “actual” authority of those" }, { "docid": "22554175", "title": "", "text": ". diplomatic representatives may have been. When the question is of the running of the statute of limitations, it is enough that our courts have been open to suit on behalf of the Russian State in whom the right to sue upon the petitioner’s present claim was vested, and that the political department of the Government has accorded recognition to a government of that state, .received its diplomatic representatives, and extended to them the privilege of maintaining suit in our courts in behalf of their state. The right and opportunity to sue upon the claim against petitioner was not suspended; and notice of repudiation of the liability given to the duly recognized diplomatic representatives must, so far as our own courts are concerned, be taken as notice to the state which they represented. The Goyernment argues that recognition of the Soviet Government, an action which for many purposes validated here that government’s previous acts within its own territory, see Underhill v. Hernandez, 168 U. S. 250; Oetjen v. Central Leather Co., 246 U. S. 297; Ricaud v. American Metal Co., 246 U. S. 304; United States v. Belmont, 301 U. S. 324; Dougherty v. Equitable Life Assurance Society, 266 N. Y. 71, 84, 85; 193 N. E. 897; Luther v. Sagor & Co., [1921] 3 K. B. D. 532, operates to set at naught all the legal consequences of the prior recognition by the United States of the Provisional Government and its representatives, as though'such recognition had never been accorded. This is tantamount to saying that the judgments in suits maintained here by the diplomatic representatives of the Provisional Government, valid when rendered, became invalid upon recognition of the Soviet Government. The argument thus ignores the distinction between the effect of our recognition of a foreign government with respect to its acts within its own territory prior to recognition, and the effect upon previous transactions consummated here between its predecessor and our own nationals. The one operates only to validate to a limited extent acts of a de facto government which by virtue of the recognition, has become a government" }, { "docid": "23177925", "title": "", "text": "with the recognition of the state itself. If a foreign state refuses the recognition of a change in the form of government of an old state, this latter does not thereby lose its recognition as an international person. Oppenheim, International Law, p. 120; Moore, Digest of International Law, vol. 1, p. 298. The suit did not abate by the change in the form of government in Russia; the state is perpetual, and survives the form of its government. The Sapphire, supra. The recognized government may carry on the suit, at least until the new government becomes accredited here by recognition. The argument that the plaintiff in error may at some future time, if the Soviet regime is recognized by our government, be compelled to pay again what it is obliged to pay 'now, is fallacious. It is only the acts performed in its own territory that can be validated by the retroactive effect of recognition. Acts theretofore performed outside its own territory cannot be validated by recognition. The former are illustrated in Underhill v. Hernandez, 168 U. S. 250, 18 S. Ct. 83, 42 L. Ed. 456, where the acts in question were performed in Venezuela; Oetjen v. Central Leather Co., supra, and Ricaud v. American Metal Co., 246 U. S. 304, 38 S. Ct. 312, 62 L. Ed. 733, where there were acts of confiscation in Mexico; and the English ease of Luther v. Sagor [1921] 3 K. B. 532, acts performed in Russia. The latter are illustrated by Kennett v. Chambers, supra; U. S. v. Trumbull (D. C.) 48 F. 99; Agency of Canadian Car Co. v. American Can Co., supra. Following these principles, we agree with the contention of the defendant in error that the state of Russia, as a plaintiff, may continue the prosecution through the agency vested in Mr. Ughet, and the plaintiff in error will be protected as against any possible future claims of a subsequent recognized government of Russia, if payment be made as directed in this judgment. In this action a verdict was directed by the court for the defendant in error" }, { "docid": "22323289", "title": "", "text": "answer to these questions, are without the support of reason or accepted principles of law. No one doubts that the Soviet decrees are the acts of the government of the Russian state, which is sovereign in its own territory, and that in consequence of our recognition of that government they will be so treated by our State Department. As such, when they affect property which was located in Russia at the time of their promulgation, they are subject to inquiry, if at all, only through our State Department and not in our courts. Underhill v. Hernandez, 168 U. S. 250; Oetjen v. Central Leather Co., 246 U. S. 297; Ricaud v. American Metal Co., 246 U. S. 304, 308-10; Salimoff & Co. v. Standard Oil Co., 262 N. Y. 220, 186 N. E. 679. But the property to which the New York judgment relates has at all relevant times been in New York in the custody of the Superintendent of Insurance as security for the policies of the insurance company, and is now in the Superintendent’s custody as Liquidator acting under the direction of the New York courts. United States v. Bank of New York Co., 296 U. S. 463, 478-79. In administering and distributing the property thus within their control, the New York courts are free to apply their own rules of law, including their own doctrines of conflict of laws, see Erie R. Co. v. Tompkins, 304 U. S. 64, 78; Griffin v. McCoach, 313 U. S. 498; Kryger v. Wilson, 242 U. S. 171, 176, except insofar as they are subject to the requirements of the full faith and credit clause — a clause applicable only to the judgments and public acts of states of the Union and not those of foreign states. Aetna Life Insurance Co. v. Tremblay, 223 U. S. 185; cf. Bank of Augusta v. Earle, 13 Pet. 519, 589-90; Bond v. Hume, 243 U. S. 15, 21-22. This Court has repeatedly decided that the extent to which a state court will follow the rules of law of a recognized foreign country in preference" }, { "docid": "22554171", "title": "", "text": "government, in the conduct of its foreign affairs, by treaty or other appropriate action, should undertake to restrict the application of local statutes of limitations against foreign governments, or if the states in enacting them should discriminate against suits brought by a foreign government. We decide only that in the absence of such action the limitation statutes of the forum run against a foreign government seeking a remedy afforded by the forum, as they run against private ■litigants. Second. Respondent, relying on the New York rules that the statute of limitations does not run against a suit to recover a bank account until liability upon it is repudiated, Tillman v. Guaranty Trust Co., 253 N. Y. 295; 171 N. E. 61, and that The statute of limitations does not run against a plaintiff who has no forum in which to assert his rights, Oswego & Syracuse R. Co. v. State, 226 N. Y. 351, 359, 362; 124 N. E. 8; Cayuga County v. State, 153 N. Y. 279, 291; 47 N. E. 288; Parmenter v. State, 135 N. Y. 154, 163; 31 N. E. 1035, argues that until recognition of the Soviet Government there was no person to whom notice of petitioner’s repudiation could be given and no court in which suit could be maintained to recover the deposit. It is not denied that, in conformity to generally accepted principles, the Soviet Government, could not maintain a suit in our courts before its recognition by the political department of the Government. For this reason access to the federal and state courts was denied to the Soviet Government before recognition. The Penza, 277 Fed. 91; The Rogdai, 278 Fed. 294; Russian S. F. S. Republic v. Cibrario, 235 N. Y. 255; Preobazhenski v. Cibrario, 192 N. Y. Supp. 275. But the argument ignores the principle controlling here and recognized by the courts of New York that the rights of a sovereign state are vested in the state-rather than in any particular government which may purport to represent it, The Sapphire, supra, 168, and that suit in its behalf may be maintained" }, { "docid": "22554177", "title": "", "text": "de jure. But it does not follow that recognition renders of no effect transactions here with a prior recognized government in conformity to the declared policy of our own Government. The very purpose of the recognition by our Government is that our nationals may be conclusively advised with what. government they may safely carry on business transactions and who its representatives are. If those transactions, valid when entered into, were to be disregarded after the later recognition of a successor government, recognition would be but an idle ceremony, yielding none of the advantages of established diplomatic relations in enabling business transactions. to proceed, and affording no protection to our own nationals in carrying them on. So far as. we are advised no court has sanctioned such a doctrine. The notion that the judgment in suits maintained by the representative of the Provisional Government would not be conclusive upon all successor governments, was considered and rejected in Russian Government v. Lehigh Valley R. Co., supra. An application for writ of prohibition was denied by this Court. 265 U. S. 573. We conclude that the recognition of the Soviet Government left unaffected those legal consequences of the previous recognition of the Provisional Government and its representatives, which attached to action taken here prior to the later recognition. Third. If the claim of the Russian Government was barred by limitation the United States as its assignee can be in no better position either because of the rule nullum tempus or by virtue of the terms of the assignment. We need waste no time on refinements upon the suggested distinction between rights and remedies, for we may assume for present purposes that the United States acquired by the assignment whatever rights then survived the running of the statute against the Russian Government, and that it may assert those rights subject to such plea of limitations as may be made by petitioner. As has already been noted, the rulé nullum tempus rests op the public policy of protecting the domestic sovereign from omissions of its own officers and agents whose neglect, through lapse of time," }, { "docid": "13600999", "title": "", "text": "in their respective negotiations. By diplomatic communications exchanged between the French Government and the Union of Soviet Socialist Eepublies, recognition de jure was accorded to the Union of Soviet Socialist Eepublies by the Eepublic of France in October, 1924, and apparently the Government of France made all the claims of the Eepublie of France and its nationals the subject of negotiation between the two governments to the exclusion of legal proceedings for their enforcement. But if sueh claims as the plaintiff now urges were not expressly reserved for negotiation, and if the law applied by France to the rights of its citizens upon her recognition of the Union of Soviet Socialist Eepublies as the de jure Government of Eussia does differ in effect from that given sueh recognition by the laws in the jurisdiction where this suit is brought, then the French law is a matter of proof. Latham v. De Loiselle, 3 App. Div. 525, 38 N. Y. S. 270, affirmed 158 N. Y. 687, 53 N. E. 1127, and eases therein cited. It is settled law in this jurisdiction that recognition of a foreign government, either de juré or de facto, validates all acts of sueh foreign government from the time it existed. Williams v. Bruffy, supra; Oetgen v. Central Leather Co., 246 U. S. 297, 38 S. Ct. 309, 62 L. Ed. 726; Underhill v. Hernandez, 168 U. S. 250, 18 S. Ct. 83, 42 L. Ed. 456. I think the position of the defendants is sound and supported by the authorities, and without discussing, but after consideration of, the cases cited in the briefs of the learned counsel for the plaintiff, which seem to be distinguishable, I refer to the folio-wing as supporting this view: Mr. Moore, in his Digest on International Law, volume 6, § 970, states: “A citizen of one nation wronged, by conduct of another nation must seek redress through his own government. His government must assume responsibility of presenting his claim or it need not be considered.” See, also, United States v. Diekelman, 92 U. S. 520, at page 524 (23 L." }, { "docid": "22554176", "title": "", "text": "Ricaud v. American Metal Co., 246 U. S. 304; United States v. Belmont, 301 U. S. 324; Dougherty v. Equitable Life Assurance Society, 266 N. Y. 71, 84, 85; 193 N. E. 897; Luther v. Sagor & Co., [1921] 3 K. B. D. 532, operates to set at naught all the legal consequences of the prior recognition by the United States of the Provisional Government and its representatives, as though'such recognition had never been accorded. This is tantamount to saying that the judgments in suits maintained here by the diplomatic representatives of the Provisional Government, valid when rendered, became invalid upon recognition of the Soviet Government. The argument thus ignores the distinction between the effect of our recognition of a foreign government with respect to its acts within its own territory prior to recognition, and the effect upon previous transactions consummated here between its predecessor and our own nationals. The one operates only to validate to a limited extent acts of a de facto government which by virtue of the recognition, has become a government de jure. But it does not follow that recognition renders of no effect transactions here with a prior recognized government in conformity to the declared policy of our own Government. The very purpose of the recognition by our Government is that our nationals may be conclusively advised with what. government they may safely carry on business transactions and who its representatives are. If those transactions, valid when entered into, were to be disregarded after the later recognition of a successor government, recognition would be but an idle ceremony, yielding none of the advantages of established diplomatic relations in enabling business transactions. to proceed, and affording no protection to our own nationals in carrying them on. So far as. we are advised no court has sanctioned such a doctrine. The notion that the judgment in suits maintained by the representative of the Provisional Government would not be conclusive upon all successor governments, was considered and rejected in Russian Government v. Lehigh Valley R. Co., supra. An application for writ of prohibition was denied by this Court." }, { "docid": "22554172", "title": "", "text": "State, 135 N. Y. 154, 163; 31 N. E. 1035, argues that until recognition of the Soviet Government there was no person to whom notice of petitioner’s repudiation could be given and no court in which suit could be maintained to recover the deposit. It is not denied that, in conformity to generally accepted principles, the Soviet Government, could not maintain a suit in our courts before its recognition by the political department of the Government. For this reason access to the federal and state courts was denied to the Soviet Government before recognition. The Penza, 277 Fed. 91; The Rogdai, 278 Fed. 294; Russian S. F. S. Republic v. Cibrario, 235 N. Y. 255; Preobazhenski v. Cibrario, 192 N. Y. Supp. 275. But the argument ignores the principle controlling here and recognized by the courts of New York that the rights of a sovereign state are vested in the state-rather than in any particular government which may purport to represent it, The Sapphire, supra, 168, and that suit in its behalf may be maintained in our courts only by that government which has been recognized by the political department of our own government as the authorized government of the foreign state. Jones v. United States, 137 U. S. 202, 212; Russian Government v. Lehigh Valley R. Co., 293 Fed. 133, 135, aff’d sub nom. Lehigh Valley R. Co. v. State of Russia, 21 F. (2d) 396, 409; Matter of Lehigh Valley R. Co., 265 U. S. 573; Russian S. F. S. Republic v. Cibrario, supra; Moore, International Law Digest, §§ 75, 78. What government is to be regarded here as representative of a foreign sovereign. state is a political rather than a judicial question* and is to be determined by the political department of the government Objections to its deter mination as well as to the underlying policy are to be addressed to it and not to the courts. Its action in recognizing a foreign government and in receiving its diplomatic representatives is conclusive on all domestic courts, which are bound to accept that determination, although they are free" }, { "docid": "18396954", "title": "", "text": "that the premises were not being occupied by AP, but rather by the Canadian Press. Plaintiffs had not consented in writing to this subletting by AP of the premises to the Canadian Press, which constituted a breach of the lease. AP knew, or should have known that, as the result of the action of the Canadian Embassy in sheltering and engineering the escape of American diplomats from Iran after seizure of the American Embassy in Tehran, Canadians were regarded by Iranian authorities with disfavor. Plaintiffs directly and through their representative repeatedly complained to AP concerning breach of the lease, warning that the premises might be confiscated by Iran. AP agreed to vacate the premises, but failed to do so, and ultimately, in July, 1980, the Iranian authorities confiscated plaintiffs’ house. Plaintiffs sue AP for wilful tort, which led to the entirely foreseeable consequence of the confiscation of their property- I. The Act of State Doctrine The act of state doctrine originated as a bar to suits against foreign governments or their officials. In Underhill v. Hernandez, 168 U.S. 250, 18 S.Ct. 83, 42 L.Ed. 456 (1897), the Supreme Court dismissed a suit for wrongful detention against the revolutionary government of Venezuela, stating, “the courts of one country will not sit in judgment on the acts of another done within its own territory.” 168 U.S. at 252, 18 S.Ct. at 84. Redress for such acts was held to be proper only through diplomatic channels in the hands of the Executive branch. Id.; see also Shapleigh v. Mier, 299 U.S. 468, 471, 57 S.Ct. 261, 262, 81 L.Ed. 355 (1937). (Cardozo, J.). The doctrine arises not from a lack of jurisdiction or of competence in American courts to inquire into the actions of foreign governments, but rather from recognition that under our Constitution evaluation of the validity of the acts of foreign governments is properly left to the other branches of government. Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 310, 62 L.Ed. 726 (1918); Ricaud v. American Metal Co., 246 U.S. 304, 309, 38 S.Ct. 312, 313," }, { "docid": "22554174", "title": "", "text": "to draw for themselves its legal consequences in litigations pending before them. Jones v. United States, supra, 212; Agency of Canadian Car & F. Co. v. Amercan Can Co., 258 Fed. 363; Lehigh Valley R. Co. v. State of Russia, supra. We accept as conclusive here the determination of our own State Department that the Russian State was represented by the Provisional Government through its duly recognized representatives from March 16, 1917 to November 16, 1933, when the Soviet Government was recognized. There was at all times during that period a recog nized diplomatic representative of the Russian State to whom notice concerning its interests within the United States could be communicated, and to whom our courts were open for the purpose of prosecuting suits in behalf of the Russian State. In fact, during that period, suits were brought in its behalf in both the federal and state courts, which consistently ruled that the recognized Ambassador and Financial Attache were authorized to maintain them. We do'not stop to inquire what the “actual” authority of those . diplomatic representatives may have been. When the question is of the running of the statute of limitations, it is enough that our courts have been open to suit on behalf of the Russian State in whom the right to sue upon the petitioner’s present claim was vested, and that the political department of the Government has accorded recognition to a government of that state, .received its diplomatic representatives, and extended to them the privilege of maintaining suit in our courts in behalf of their state. The right and opportunity to sue upon the claim against petitioner was not suspended; and notice of repudiation of the liability given to the duly recognized diplomatic representatives must, so far as our own courts are concerned, be taken as notice to the state which they represented. The Goyernment argues that recognition of the Soviet Government, an action which for many purposes validated here that government’s previous acts within its own territory, see Underhill v. Hernandez, 168 U. S. 250; Oetjen v. Central Leather Co., 246 U. S. 297;" } ]

[ { "docid": "22743170", "title": "", "text": "rationale of the decree of 1920. Its restraints, whether just or excessive, were born of that fear. The difficulty of ferreting out these evils and repressing them when discovered supplies an additional reason why we should leave the defendants where we find them, especially since the place where we find them is the one where they agreed to be. There is need to keep in mind steadily the limits of inquiry proper to the case before us. We are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting. Life is never static, and the passing of a decade has brought changes to the grocery business as it has to every other. The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned. The case comes down to this: the defendants had abused their powers so grossly and persistently as to lead to the belief that even when they were acting separately, their conduct should be subjected to extraordinary restraints. There was the fear that even when so acting they would still be ready and able to crush their feebler rivals in the sale of groceries and kindred products by forms of competition too ruthless and oppressive to be accepted as fair and just. Wisely or unwisely, they submitted to these restraints upon the exercise of powers that would normally be theirs. They chose to renounce" } ]

[ { "docid": "654192", "title": "", "text": "in institutional reform litigation (as in Rufo).” (Docket Entry # 76, p. 9). With respect to employing Rufo’s more flexible standard, however, this court disagrees. In Swift, the Supreme Court set the boundaries for modifying an injunction entered into with the consent of the parties. In the April 1, 1992 Order (Docket Entry # 49, p. 5), the district judge quoted the following standard from Swift: There is need to keep in mind steadily the limits of inquiry proper to the case before us. We are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting. Life is never static, and the passing of a decade has brought changes to the grocery business as it has to every other. The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned. United States v. Swift, 286 U.S. at 119, 52 S.Ct. at 464. Thus, although a court “cannot disregard substantial changes in law or fact that undermine the basis for the consent decree,” Williams v. Atkins, 786 F.2d 457, 459 (1st Cir.1986), Sacha Lichine bears a heavy burden. Williams, and the two First Circuit cases discussed therein, involved subsequent changes in the law. It is also true, however, that changed factual circumstances may provide the basis to modify an injunction. See, e.g., Food Fair Stores, Inc. v. Food Center, Inc., 356 F.2d 775 (1st Cir.1966); see also" }, { "docid": "16791213", "title": "", "text": "653 F.2d 166, 172 (5th Cir.1981). See generally 11 Wright & Miller, Federal Practice and Procedure § 2961, at 598 (1973). Where a court is supervising a case involving continually changing conditions, the court retains the power to modify a consent decree. United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932); Duran v. Elrod, 760 F.2d 756, 758 (7th Cir.1985). Most requests for modification are made by way of Fed.R.Civ.P. 60(b). E.g., United States v. Georgia Power Co., 634 F.2d 929, 931-32 (5th Cir.1981); Mayberry v. Maroney, 558 F.2d 1159, 9963 (3d Cir.1977). The decision to modify or not to modify a consent decree lies within the discretion of the district court. Neely v. City of Grenada, 799 F.2d 203, 207 (5th Cir.1986); Lelsz v. Kavanagh, 629 F.Supp. 1487, 1489 (N.D.Tex.1986). Modification of a consent decree however is not a remedy to be lightly awarded. The district court’s discretionary ruling is not unfettered; it is guided by certain legal principles. It has been stated that “modification under rule 60(b) requires ‘that a significant change of circumstances shall have occurred since the date of the final judgment to warrant its modification.’ ” Duran v. Elrod, 713 F.2d 292, 296 (7th Cir.1983) (citing Benjamin v. Malcolm, 528 F.Supp. 925, 928 (S.D.N.Y.1981)). In the leading Supreme Court case on modification of consent decrees, Justice Cardozo stated: A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need____ ****** There is need to keep in mind steadily the limits of our inquiry to the case before us. We are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree. The [consent decree], whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting____ The inquiry for us is whether the changes are so important that the dangers, once substantial, have become attenuated to" }, { "docid": "16243570", "title": "", "text": "in denying a modification of a 12 year old anti-trust decree: The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off of the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned .... What was then solemnly adjudged as a final composition of a historic litigation will not be lightly undone at the suit of the offenders, and the composition held for nothing. United States v. Swift & Co., 286 U.S. 106, 119-20, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932). Accord, SEC v. Advance Growth Capital Corp., 539 F.2d 649, 652 (7th Cir. 1976). The only evidence introduced by the City and the United States in support of their joint motion was the affidavit of a United States Justice Department Attorney, Cynthia Drabek. This affidavit indicated that, at the present time, approximately the same percentage of minorities are sergeants as are patrol officers — 21%. See note 6, supra. We cannot say that Judge Marshall abused his discretion in finding that this evidence does not warrant modification of the 1976 decree. United States v. City of Chicago, supra. 549 F.2d at 436. First of all, the permanent injunction entered in 1976 and affirmed in 1977 called not only for parity between the patrol officers and sergeants but between the police force and the City workforce as a whole. 411 F.Supp. at 249. Stating that the injunction’s goal is fulfilled now that there is parity between minority officers and sergeants ignores its ultimate goal. Parity between the minority officers and sergeants does not mean that the Chicago police force “reflects the racial and ethnic composition of the work force of the City of Chicago as a whole.” Id. Second, substituting as" }, { "docid": "23282494", "title": "", "text": "anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting. Life is never static, and the passing of a decade has brought changes to the grocery business as it has to every other. The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned. ###### “What was then solemnly adjudged as a final composition of an historic litigation will not lightly be undone at the suit of the offenders, and the composition held for nothing.” 286 U.S. at 119-120, 52 S.Ct. at 464. We glean, from this, certain factors of importance: (1) that, where modification and amendment of an existing decree is under consideration, there are “limits of inquiry” for the decree court and for the reviewing court; (2) that the inquiry is “whether the changes are so important that dangers, once substantial, have become attenuated to a shadow”; (3) that the movants must be “suffering hardship so extreme and unexpected” as to be regarded as “victims of oppression”; and (4) that there must be “[njothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions.” Placed in other words, this means for us that modification is only cautiously to be granted; that some change is not enough; that the dangers which the decree was meant to foreclose must almost have disappeared; that hardship and oppression, extreme and unexpected, are significant; and that the movants’ task is to provide close to" }, { "docid": "2724936", "title": "", "text": "v. Harnischfeger Corp., 242 F.2d 712 (7th Cir. 1957), the dissolution of an injunction was refused despite 12 years of sustained obedience. “Compliance,” the court answered, “is just what the law expects.” Id. 242 F.2d at 713. More recently the First Circuit reversed a district court order dissolving an-injunction after eight years of compliance. The Court of Appeals commented: “The injunction, of course, merely directed appellee to do what the law obliged him to do in the first place.” Goldberg v. Ross, 300 F.2d 151 (1st Cir. 1962). Again, the situation here, unlike Tobin,, where specific hardship was shown by the-party enjoined, is different since there-is no evidence of any hardship or inconvenience in the operation of the schools by reason of the injunction. In United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932), where rescission of the injunctive order was denied notwithstanding many years-of obedience, Justice Cardozo said: “The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if' the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression.” It is far from established that the segregated system in the county’s schools has-been “attenuated to a shadow” or that, there is no further need for the injunction, or that its continuance is oppressive. We are not unmindful that many-obstructive devices, designed to impede- and frustrate desegregation were interposed by forces for which this School-Board cannot in fairness be held accountable. Until a comparatively recent date-statutory and other obstacles stood in the-way of compliance with the law of the- land and the court’s order. And it is not our intention to imply any criticism of actions of the District Judge taken during the period in question, for doubtless these were prompted by like compelling conditions. However this may be, compliance began only lately. The long series of lawsuits to attain the effectiveness of the injunction," }, { "docid": "22278705", "title": "", "text": "decree of injunctive relief is long-established, broad, and flexible. “A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.... The distinction is between restraints that give protection to rights fully accrued upon facte so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative.”, United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932) (Cardozo, J.). “Familiar equity procedure assures opportunity for modifying or vacating an injunction when its continuance is no longer warranted”, Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 298, 61 S.Ct. 552, 557, 85 L.Ed. 836 (1941) (Frankfurter, J.). In denying defendants’ motion for modification of the limitation on the size of community placement facilities, Judge Bar-tels relied on other language of Justice Cardozo in United States v. Swift & Co., supra, 286 U.S. at 119, 52 S.Ct. at 464, quoted here in extenso: There is need to keep in mind steadily the limits of inquiry proper to the case before us. We are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting. Life is never static, and the passing of a decade has brought changes to the grocery business [the subject of the decree] as it has to every other. The inquiry for us is whether the changes are so important that the dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen" }, { "docid": "11042272", "title": "", "text": "continued enforcement is no longer equitable. The NLRB opposes the motion because (1) BCTC has not demonstrated that it has complied with and will comply with the judgments and contempt adjudications; (2) the purpose of the judgments and adjudications — permanently restraining BCTC from violating section 8(b)(4)(B) — has not been accomplished; (3) BCTC has failed to show any substantial injury or hardship; and (4) BCTC has failed to demonstrate any other change of circumstances justifying exceptional relief. II. The parties dispute the correct legal standard to be applied to BCTC’s motion to dissolve the injunctions. The NLRB would have us apply a standard culled from language used by the Supreme Court more than sixty years ago in United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932). In Swift, the government had sued the five leading meat packers to dissolve a monopoly that they had acquired in meat products and which they were taking steps to extend into other foods. In 1920, defendants entered into a consent decree consenting to some dismemberment and, inter alia, prohibiting them from manufacturing, selling or transporting any of 114 grocery products. Although defendants managed to avoid the full impact of the decree through legal proceedings for a while, when they could no longer do so they moved to modify the decree, citing changed conditions in the industry. The district court granted a modification to permit defendants to deal at wholesale in groceries. The Supreme Court reversed, finding no “grievous wrong” arising from continued operation of the decree. The Court stated that when a party seeks to modify or dissolve an injunction, entered by consent or otherwise, because of changed circumstances, the inquiry differs from the framing of a decree: The inquiry ... is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less" }, { "docid": "14289257", "title": "", "text": "law cited above, recognizing the necessity for liberal modification of final judgments. See, e.g., New York State Ass’n for Retarded Children v. Carey, 706 F.2d 956, 967-70 (2d Cir.), cert. denied, 464 U.S. 915, 104 S.Ct. 277, 78 L.Ed.2d 257 (1983) (modification power is “broad and flexible,” and is appropriately exercised in light of changing factual circumstances); Chance v. Board of Examiners, 561 F.2d 1079, 1086 (2d Cir.1977) (indicating that vacation of a consent decree is possible when “the purposes of the decree have been achieved.”). The EEOC maintains that this case is governed solely by United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932), and that Dowell and Rufo are inapplicable, so that the permanent injunction portions of the Consent Decree may not be dissolved without a clear showing of grievous harm evoked by new or unforeseen conditions. The Court cannot agree. In Swift, the Supreme Court stated: The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change [the decree.] 286 U.S. at 119, 52 S.Ct. at 464. Since Swift, however, the Court has placed less emphasis on the deleterious effects of a decree on the defendant and more on the continuing need for the injunction. In Rufo, after examining its “decisions since Swift,” the Supreme Court specifically remarked “that the ‘grievous wrong’ language of Swift was not intended to take on a talismanic quality, warding off virtually all efforts to modify consent decrees.” 112 S.Ct. at 758. The Rufo Court cited United Shoe for the proposition that Swift did not stiffen “the traditional flexible standard for modification of consent decrees.” Rufo, 112 S.Ct. at 757-58. The Court noted: The Swift opinion pointedly" }, { "docid": "22278706", "title": "", "text": "There is need to keep in mind steadily the limits of inquiry proper to the case before us. We are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting. Life is never static, and the passing of a decade has brought changes to the grocery business [the subject of the decree] as it has to every other. The inquiry for us is whether the changes are so important that the dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned. This apparent hardening of the usual standard for modifying decrees of injunctive relief did not stem from the fact that in Swift the Court was dealing with a consent decree. Justice Cardozo explicitly ruled that “[t]he result is all one whether the decree has been entered after litigation or by consent” and rejected the argument that for purposes of modification by the Court, “a decree entered upon consent is to be ' treated as a contract and not as a judicial act.... The consent is to be read as directed toward events as they then were. It was not an abandonment of the right to exact revision in the future, if revision should become necessary in adaption to events to be”, 286 U.S. at 114, 115, 52 S.Ct. at 462. Rather, the considerations underlying the language just quoted from Swift were based on the specific facts then before the Court. The consent decree at issue in" }, { "docid": "16243539", "title": "", "text": "1(B)(1) above. Having established the issue as the modification of a permanent injunction, we believe that United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932), must be the starting point of our discussion. In Swift, the Court recognized the inherent power of a court of equity to modify a decree in light of changed circumstances, “to adapt its restraints to the needs of a new day.” 286 U.S. at 113, 52 S.Ct. at 462. Swift involved a consent decree, entered in a suit brought by the United States charging a monopolistic combination in violation of the Sherman Act, which enjoined the defendants from entering certain markets. Ten years after entry of the consent degree, the defendants petitioned the court to modify the injunction so as to allow them to enter the restricted markets. The district court granted the motion but the Supreme Court reversed, announcing the applicable standard as follows: The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned. 286 U.S. at 119, 52 S.Ct. at 464 (emphasis supplied). The Supreme Court, applying this standard, concluded that the dangers to which the injunction was directed, namely, the opportunity and inclination of the defendants to exploit their dominant market position to starve out weaker rivals, continued “with undiminished force today.” 286 U.S. at 115, 52 S.Ct. at 462. Far from becoming “attenuated to a shadow,” the “ancient peril” remained very much alive. 286 U.S. at 118, 52 S.Ct. at 463. In short, the conditions that originally prompted the court to award injunctive relief had not changed at all. Although numerous cases have mechanically" }, { "docid": "16243569", "title": "", "text": "circumstances to warrant modification of the 1976 decree. It would have us remand with directions to the district court to set forth its findings and conclusions following reconsideration of the motion to modify. We decline to follow the suggestions of either the City or the United States. The district court correctly treated the joint motion as a motion to modify a permanent injunction rather than as a consent decree. This is not a situation in which the parties to an action have entered into a voluntary agreement settling a dispute, pri- or to an adjudication of the merits. Here, there was a determination of the merits. A permanent injunction protecting the rights of those the City discriminated against was entered and affirmed. The City cannot avoid this permanent injunction simply by agreeing with only one party, the United States, to a restructuring of that injunction, especially when the Robinson plaintiffs oppose the purported consent decree. Parties seeking to modify a permanent injunction, such as the 1976 decree, bear a heavy burden. As Justice Cardozo stated in denying a modification of a 12 year old anti-trust decree: The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off of the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned .... What was then solemnly adjudged as a final composition of a historic litigation will not be lightly undone at the suit of the offenders, and the composition held for nothing. United States v. Swift & Co., 286 U.S. 106, 119-20, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932). Accord, SEC v. Advance Growth Capital Corp., 539 F.2d 649, 652 (7th Cir. 1976). The only evidence introduced by the City and the United States" }, { "docid": "16791214", "title": "", "text": "under rule 60(b) requires ‘that a significant change of circumstances shall have occurred since the date of the final judgment to warrant its modification.’ ” Duran v. Elrod, 713 F.2d 292, 296 (7th Cir.1983) (citing Benjamin v. Malcolm, 528 F.Supp. 925, 928 (S.D.N.Y.1981)). In the leading Supreme Court case on modification of consent decrees, Justice Cardozo stated: A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need____ ****** There is need to keep in mind steadily the limits of our inquiry to the case before us. We are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree. The [consent decree], whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting____ The inquiry for us is whether the changes are so important that the dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the [consent decree] is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned. United States v. Swift & Co., 286 U.S. 106, 114, 119, 52 S.Ct. 460, 462, 464, 76 L.Ed. 999 (1932). Subsequently, the Supreme Court has stated that “Swift teaches that a decree may be changed upon an appropriate showing, and it holds that it may not be changed in the interest of the defendants if the purposes of the litigation as incorporated in the decree have not been fully achieved.” United States v. United Shoe Machinery Corp., 391 U.S. 244, 248, 88 S.Ct. 1496, 1499, 20 L.Ed.2d 562 (1968). We have adhered strictly to the teachings of Swift in cases involving consent decrees" }, { "docid": "15149898", "title": "", "text": "464, 76 L.Ed. 999 (1932), requires “[n]othing less than a clear showing of grievous wrong evoked by new and unforeseen conditions ... to change what was decreed after years of litigation with the consent of all concerned.” The Court cautioned: There is need to keep in mind steadily the limits of inquiry proper to the case before us. We are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting. Life is never static and the passing of a decade has brought changes to the grocery business as it has to every other. The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. Swift, 286 U.S. at 119, 52 S.Ct. at 464 (emphasis added). Hence, to pass muster under this test, the party seeking relief from an injunctive decree “must demonstrate dramatic changes in conditions unforeseen at the time of the decree that both render the protections of the decree unnecessary to effectuate the rights of the beneficiary and impose extreme and unexpectedly oppressive hardships on the obligor.” T. Jost, From Swift to Stotts and Beyond: Modification of Injunctions in the Federal Courts, 64 Tex.L.Rev. 1101, 1110 (1986). While the Swift language may also support a modification when the original purposes of the injunction are not fulfilled, the standard still constricts the district court’s inquiry. Placed in other words, this means for us that modification is only cautiously to be granted; that some change is not enough; that the dangers which the decree was meant to foreclose must almost have disappeared; that hardship and oppression, extreme and unexpected, are significant; and that the movants’ task is to provide close to an unanswerable case. To repeat: caution, substantial change, unforeseenness, oppressive hardship, and a clear showing are the requirements. Humble Oil & Ref. Co. v." }, { "docid": "11042273", "title": "", "text": "consenting to some dismemberment and, inter alia, prohibiting them from manufacturing, selling or transporting any of 114 grocery products. Although defendants managed to avoid the full impact of the decree through legal proceedings for a while, when they could no longer do so they moved to modify the decree, citing changed conditions in the industry. The district court granted a modification to permit defendants to deal at wholesale in groceries. The Supreme Court reversed, finding no “grievous wrong” arising from continued operation of the decree. The Court stated that when a party seeks to modify or dissolve an injunction, entered by consent or otherwise, because of changed circumstances, the inquiry differs from the framing of a decree: The inquiry ... is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned. Id. at 119, 52 S.Ct. at 464 (emphasis added). BCTC argues that labor injunctions “enjoy a greater presumption of limited duration” than other injunctions. BCTC Reply Memorandum of Law at 3. Surprisingly, it relies for this proposition on Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836 (1941), in which the Court upheld an injunction imposed by the state supreme court prohibiting peaceful picketing as well as acts of violence by a union which had interfered with the distribution of the products of a dairy. Because of the heavy reliance BCTC places on the Milk Wagon Drivers Union case, we examine it closely. The Supreme Court had previously held that state statutes prohibiting all picketing near an employer’s place of business violated the constitutional protection of free speech. See Thornhill v. Alabama, 310 U.S. 88, 60" }, { "docid": "15149897", "title": "", "text": "760 (3d Cir.1978), cert. denied, 446 U.S. 923, 100 S.Ct. 1862, 64 L.Ed.2d 278 (1980). “[Discretion imports not the court’s inclination, but ... its judgment; and its judgment is to be guided by sound legal principles.” Franks v. Bowman Trans. Co., 424 U.S. 747, 770-71, 96 S.Ct. 1251, 1266-67, 47 L.Ed.2d 444 (1976) (citation omitted). III. Standard for Modification While a court’s equitable power to fashion a remedy is broad and its continuing duty to modify or vacate relief inheres to the prospective nature of the relief, modification is subject to an exacting standard from which this circuit has not wavered. See Blinder, Robinson, 855 F.2d at 679; Equal Employment Opportunity Comm’n v. Safeway Stores, Inc., 611 F.2d 795 (10th Cir.1979), cert. denied, 446 U.S. 952, 100 S.Ct. 2918, 64 L.Ed.2d 809 (1980); Securities and Exch. Comm’n v. Thermodynamics, Inc., 464 F.2d 457 (10th Cir.1972), cert. denied, 410 U.S. 927, 93 S.Ct. 1358, 35 L.Ed.2d 588 (1973). This standard, first articulated in United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932), requires “[n]othing less than a clear showing of grievous wrong evoked by new and unforeseen conditions ... to change what was decreed after years of litigation with the consent of all concerned.” The Court cautioned: There is need to keep in mind steadily the limits of inquiry proper to the case before us. We are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting. Life is never static and the passing of a decade has brought changes to the grocery business as it has to every other. The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. Swift, 286 U.S. at 119, 52 S.Ct. at 464 (emphasis added). Hence, to pass muster under" }, { "docid": "21405587", "title": "", "text": "case on the subject, the Court said: “There is need to keep in mind steadily the limits of inquiry proper to the ease before us. We are not. framing a decree. We are asking-ourselves whether anything has happened that will justify us now in changing a decree. The injunction whether right or wrong, is not subject to impeachment in its application to the conditions that existed in its making. We are not at liberty to reverse under the guise of readjusting. Life is never static, and the passing of a decade has brought changes to the grocery business as. it has to every other. The inquiry for us is whether the changes are so-important that dangers once substantial, have become attenuated to. a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering-hardship so extreme and unexpected as to justify us in saying that they are victims of oppression. Nothing-less than a clear showing of grievous-wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent. of all concerned.” 286 U.S. at page 119, 52 S.Ct. at page 464. The Court of Appeals for the Ninth Circuit has applied this principle in Morse-Starrett Products Co. v. Steccone, 1953, 205 F.2d 244. The Court, after quoting the language of the Swift case, set out above, stated: “In the instant case there has been no adequate showing either that changed conditions make continuation of the injunction inequitable or that operation of the injunction cannot have the intended effect. See Restatement, Torts, § 943, comment (e) (1939). The case upon which Mr. Steccone relies for the proposition that such a showing is unnecessary, Coca Cola Co. v. Standard Bottling Co., 10 Cir., 138 F.2d 788, does recognize that modification of a decree depends upon a showing of changed circumstances of sufficient importance to warrant such modification.” 205 F.2d at page 248. Significantly, in Footnote 5 of the opinion (at page 249), Judge Orr adverts to the statement of the Advisory Committee on the" }, { "docid": "14659935", "title": "", "text": "States, 1929, 276 U.S. 311, 48 S.Ct. 311, 72 L.Ed. 587; United States v. Swift & Co., 1932, 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999. The petitioners’ reliance upon decisions regarding the appropriate scope and function of an equity decree, in eases where those questions are open to consideration, is therefore misplaced. And for this reason the observations of this court in United States v. National City Lines, D.C.N.D.Ill.1955, 134 F.Supp. 350, have no application. The initial inquiry, all concede, is whether the original need for the decree still exists. As stated for the Court by Justice Cardozo, the question is whether “dangers, once substantial, have become attenuated to a shadow.” 286 U.S. at page 119, 52 S.Ct, at page 464. It bears repeating, however, that the test is not whether this court would issue the existing decree as an original matter under the circumstances which obtain today. The decree is above impeachment, and if present-day conditions are substantially the same as conditions in 1920, to modify would be to reverse. It is our duty to ask not whether the decree is needed today, but whether if it was needed in 1920, the intervening changes have eliminated that need. The parties are in disagreement upon the further inquiry directed by the Supreme Court’s test for modification. Justice Cardozo, in the introductory portion of his opinion regarding the power to modify, remarked that a court in entering a consent decree “does not abdicate its power to * * * modify its mandate, if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.” 286 U.S. at pages 114-115, 52 S.Ct. at page 462. Later in the opinion, after discussing the question of need and concluding that need still existed, Justice Cardozo remarked, “No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and" }, { "docid": "5496336", "title": "", "text": "372 (7th Cir.1989). Rule 60(b)(5) represents a codification of “preexisting law, recognizing the inherent power of a court sitting in equity to modify its decrees prospectively to achieve equity.” Jost, From Swift to Stotts and Beyond: Modification of Injunctions in the Federal Courts, 64 Tex.L. Rev. 1101, 1105 (1986) [hereinafter Jost]. The leading precedent under preexisting law is Justice Cardozo’s opinion in United States v. Swift & Co., still the dominant case in the field of injunction modification. 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932). Cases that follow the traditional modification analysis have distilled from Swift two fundamental requirements for modifying a permanent injunction. Money Store, Inc., 885 F.2d at 372. First, modification of a permanent injunction is extraordinary relief, and requires a showing of extraordinary circumstances. Id. Second, consideration of 60(b)(5) motions “does not allow relitigation of issues which have been resolved by the judgment.” Id. The scope of inquiry is restricted when a court considers a motion for modification of a permanent injunction. “We are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making.” Swift, 286 U.S. at 119, 52 S.Ct. at 464. Many cases since Swift have reiterated Swift’s restrictions on the district court’s inquiry on a motion to modify a permanent injunction: [Modification is only cautiously to be granted; ... some change is not enough; ... the dangers which the decree was meant to foreclose must almost have disappeared; ... hardship and oppression, extreme and unexpected, are significant; and ... the movants’ task is to provide close to an unanswerable case. To repeat: caution, substantial change, un-foreseenness, oppressive hardship, and a clear showing are the requirements. Humble Oil & Refining Co. v. American Oil Co., 405 F.2d 803, 813 (8th Cir.), cert. denied, 395 U.S. 905, 89 S.Ct. 1745, 23 L.Ed.2d 218 (1969) (emphasis added). Under the Swift requirements, Fairbanks would need to show clearly a substantial change in" }, { "docid": "21405586", "title": "", "text": "strength to this position when we consider that the Court of Customs and Patent Appeals, in a contest over the same trademark, held that, by reason of the contract Sun-Maid “was restricted in its use of its mark ‘Sun-Maid,’ and may not assert ownership of the same as applied to the goods described in its pending applications.” California Packing Corp. v. Sun-Maid Raisin Growers, 1933, 64 F.2d 370, 376, 20 C.C.P.A., Patents, 968. Ill No Showing of Oppressive Effect Of Injunction Factually, the showing made by the affidavits, exhibits and depositions-is insufficient to cause us to relieve Sun-Maid of its contractual obligations. A court of equity may, in the light of changed conditions, relieve a person of the effect of an injunction. However,, courts will not do so unless the conditions have so altered as to change the-judgment “into an instrument of wrong.” United States v. Swift & Co., 1932, 286 U.S. 106, 115, 52 S.Ct. 460, 462, 76 L.Ed. 999. In the case just cited, in which the-phrase just quoted was used, a leading: case on the subject, the Court said: “There is need to keep in mind steadily the limits of inquiry proper to the ease before us. We are not. framing a decree. We are asking-ourselves whether anything has happened that will justify us now in changing a decree. The injunction whether right or wrong, is not subject to impeachment in its application to the conditions that existed in its making. We are not at liberty to reverse under the guise of readjusting. Life is never static, and the passing of a decade has brought changes to the grocery business as. it has to every other. The inquiry for us is whether the changes are so-important that dangers once substantial, have become attenuated to. a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering-hardship so extreme and unexpected as to justify us in saying that they are victims of oppression. Nothing-less than a clear showing of grievous-wrong evoked by new and unforeseen conditions should lead us to" }, { "docid": "23282493", "title": "", "text": "decision as authority for shared reputation and shared goodwill but would question it as misguided authority for monopoly of that reputation and goodwill in a particular area. The legal standard. A court of equity has power “to modify an injunction in adaptation to changed conditions.” This is so whether the power is or is not' expressly reserved in the decree and “whether the decree has been entered after litigation or by consent.” United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932). In that case the Supreme Court reversed the trial court’s modification of its earlier injunction. Two dissenters stressed changed competitive conditions and “discouraging operating losses” of those theretofore restrained. 286 U.S. at 120-123, 52 S.Ct. 460. But the four-justice in an opinion by Mr. Justice Cardozo, majority (three justices took no part), pronounced the applicable standards: “There is need to keep in mind steadily the limits of inquiry proper to the case before us. We are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting. Life is never static, and the passing of a decade has brought changes to the grocery business as it has to every other. The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned. ###### “What was then solemnly adjudged as a final composition of an historic litigation will not" } ]

[ { "docid": "22101103", "title": "", "text": "improper and the contract should be cancelled. That Office felt that the invitation did not adequately inform bidders as to how they should bid with respect to delivery dates. Plaintiff’s efforts to have the Comptroller General’s decision- reversed were fruitless, and on September 21, 1956, the contracting officer informed plaintiff that in compliance with the ruling its contract was cancelled. On September 24th, Reiner replied that the Comptroller General’s decision was not binding on the Army and that the contractor considered the cancellation a breach for which it would seek recovery of full damages. This suit was then brought for breach of the contract. I The initial question is whether the award was illegal and void so that the plaintiff cannot found a court action upon it. This inquiry, we believe, is not precisely the same as that with which the Comptroller General dealt. Because of his general concern with the proper operation of competitive bidding in government procurement, he can make recommendations and render decisions that, as a matter of procurement policy, awards on contracts should be cancelled or withdrawn even though they would not be held invalid in court. He is not confined to the minimal measure of legality but can sponsor and encourage the observance of higher standards by the procuring agencies. Courts, on the other hand, are restricted, when an invitation or award is challenged, 'to deciding the rock-bottom issue of whether the contract purported to be made by the Government was invalid and therefore no contract at all— not whether another procedure would have been preferable or better attuned to the aims of the competitive bidding legislation. In testing the enforceability of an award made by the Government, where a problem of the validity of the invitation or the responsiveness of the accepted bid arises after the award, the court should ordinarily impose the binding stamp of nullity only when the illegality is plain. If the contracting officer has viewed the award as lawful, and it is reasonable to take that position under the legislation and regulations, the court should normally follow suit. Any other" } ]

[ { "docid": "6502544", "title": "", "text": "by the Comptroller General have been accorded a high degree of deference by the courts, particularly those decisions involving bid protests. E.g., M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1304-05 (D.C.Cir.1971); John Reiner & Co. v. United States, 163 Ct.Cl. 381, 325 F.2d 438 (1963), cert. denied, 377 U.S. 931, 84 S.Ct. 1332, 12 L.Ed.2d 295 (1964). “A court’s reluctance to interfere with the executive procurement process should be especially strong where, as here, the ... [GAO] has made a determination upholding the procurement officials on the merits.” M. Steinthal, 455 F.2d at 1304. However, “[t]he Court of Claims is not bound by the views of the Comptroller General nor do they operate as a legal or judicial determination of the rights of the parties____” Burroughs, 223 Ct.Cl. at 63, 617 F.2d at 597 (citing Font v. United States, 219 Ct.Cl. 335, 593 F.2d 388 (1979)). In Honeywell, Inc. v. United States, 870 F.2d 644 (Fed.Cir.1989), the contracting officer deemed that one of several bidders on an Army procurement contract had submitted a non-responsive bid. The Comptroller General found to the contrary and recommended that the Army award the contract. The Army adopted this recommendation. The second lowest bidder filed suit in the Claims Court to enjoin the award. The Claims Court disagreed with the Comptroller General’s decision, concluding that “ ‘[t]here is no rational basis upon which such a determination can be based____’” 870 F.2d at 647 (quoting Honeywell, Inc. v. United States, 16 Cl.Ct. 173, 179 (1989)). The Federal Circuit reversed, holding that the GAO’s decision was “a rational one.” Id., 870 F.2d at 649. The Federal Circuit’s application of a rational basis standard in Honeywell appears inconsistent with the standard governing review of GAO decisions articulated in Burroughs. However, the decision in Honeywell was crafted specifically to deal with the analysis of the lower court’s opinion, which focused on whether the GAO’s decision concerning the responsiveness of a bid had a rational basis. The Claims Court in Honeywell did not accord due weight and deference to either the GAO’s or the contracting officer’s decision. The" }, { "docid": "6077079", "title": "", "text": "458 F.2d 994, 198 Ct.Cl. - (decided April 14, 1972), as allowing such evidence to explain an ambiguous statement or add additional terms, not to contradict the writing. The writing is unambiguous, in light of ITT, supra, that the contract may be non-extended for any reason at all, including even inadvertence and clerical error, even if funds are available. However, I read Mr. Scala as answering the question put to him, that for the first year funds were available, so bidders could feel easy about that likely hazard to the contract’s continued life. I think it overstretches Mr. Scala’s remark to make it, as the court does, a commitment as to what defendant would do in the event that occurred, a protest against the award by an unsuccessful bidder, a questioning by the Comptroller General of the propriety of the award, and his recommendation that it should not be extended. I deem it a fair and proper use of the pre-bid conference that any prospective bidder who wanted to be reassured about this should have asked about it. In John Reiner & Co. v. United States, 325 F.2d 438, 163 Ct.Cl. 381 (1963), cert. denied, 377 U.S. 931, 84 S.Ct. 1332, 12 L.Ed.2d 295 (1964) we recognized the propriety of the Comptroller General’s review of awards, and his making recommendations and rendering decisions that awards or contracts should be cancelled or withdrawn, even though they would not be held invalid in court. In such circumstances, the contract is not a nullity and the contractor is not left without a remedy, but it is logical to expect the use of the contract’s own provisions to get the Government out of its deal as cheaply as the clauses will allow. In.Reiner, the termination article was so used, but in the case of a multiple fiscal year procurement with option to extend it would be foreseeable that the Comptroller General might recommend that the contract simply not be extended. It appears to me that the plaintiff accepted the award with this hazard inherent. It certainly appears equitable to use a termination settlement as" }, { "docid": "11754987", "title": "", "text": "invoke the convenience-termination article makes no difference, and that that clause nevertheless sets the limit to any possible recovery. John Reiner & Co. v. United States, 163 Ct. Cl. 381, 325 F. 2d 438 (1963), cert. denied, 377 U.S. 931 (1964); Brown & Son Electric Co. v. United States, 163 Ct. Cl. 465, 325 F. 2d 446 (1963). Cf. Goldwasser v. United States, 163 Ct. Cl. 450, 325 F. 2d 722 (1963). In Reiner and Brown Electric, the Government canceled the contracts, not under the termination article but because the Comptroller General had ruled them illegal. We held the contracts lawful but restricted the contractors to the amounts recoverable under the termination clause since that provision could properly have been invoked by the contracting officer. The justifications actually given for the cancellations were not valid, but “a good ground did exist” for ending the contractors’ performance “in the far-reaching right to terminate under the termination article.” John Berner & Co., supra, 163 Ct. Cl. at 392, 325 F. 2d at 413. That adequate cause for cancellation cured the defective reason which prompted the defendant to act. A party to a contract may “justify an asserted termination, rescission, or repudiation, of a contract by proving that there was, at the time, an adequate cause, although it did not become known to him until later.” College Point Boat Corp. v. United States, 267 U.S. 12, 16 (1925). The same principle applies here. Even though the two contracts be read to call upon the Government to fill all of its requirements through plaintiff’s services, it cannot be denied that the Government had also reserved the right to terminate plaintiff’s performance, either wholly or partially. If the contracting officer had accepted the agreements as “requirements” contracts, he could still have satisfied his desire to place some orders elsewhere by invoking the right of partial termination, “from time to time” if necessary, under the convenience-termination article. It follows that, even on plaintiff’s view of the nature of the contracts, there was justifiable cause — the right to terminate — for what the defendant did. That" }, { "docid": "23066769", "title": "", "text": "not palpably illegal to the bidder’s eyes. [Emphasis added.] Id. The precedent of the Court of Claims was succinctly summarized in a decision of the Comptroller General, B-176393, 52 Comp.Gen. 214, 218 (1972) as follows: We are in agreement with the position of the Court of Claims that “the binding stamp of nullity” should be imposed only when the illegality of an award is “plain,” John Reiner & Co. v. United States, 325 F.2d 438, 440 (163 Ct.Cl. 381) or “palpable,” Warren Brothers Roads Co. v. United States, 355 F.2d 612, 615 (173 Ct.Cl. 714). In determining whether an award is plainly or palpably illegal, we believe that if the award was made contrary to statutory or regulatory requirements because of some action or statement by the contractor (Prestex, Inc. v. United States, 320 F.2d 367 (162 Ct.Cl. 620), or if the contractor was on direct notice that the procedures being followed were violative of such requirements (Schoenbrod v. United States, 410 F.2d 400 (187 Ct.Cl. 627), then the award may be canceled without liability to the Government except to the extent recovery may be had on the basis of quantum meruit. On the other hand, if the contractor did not contribute to the mistake resulting in the award and was not on direct notice before award that the procedures being followed were wrong, the award should not be considered plainly or palpably illegal, and the contract may only be terminated for the convenience of the Government. John Reiner & Co. v. United States, supra; Brown & Son Electric Co. v. United States, 325 F.2d 446 (163 Ct.Cl. 465). Accord, Southwest Marine, Inc., No. B-2194232 (Comp.Gen. Nov. 25, 1985); Memorex Corp., No. B-213430.2 (Comp.Gen. Oct. 23, 1984). From the above precedent, several things become clear. First, a contractor is entitled to his day in court to determine his rights vis-a-vis the government, regardless of the success of a protest. A determination that a contract is void ab initio or voidable in the protest is not binding in the contractor’s suit. Second, where conforming goods or services have been delivered by" }, { "docid": "14239911", "title": "", "text": "its requirements. We need not resolve any of these disputed questions. For the purposes of our determination we can assume, without deciding, that the contracts obligated the Government at all times, including the last year, to give all of its orders for title certificates and insurance (in the specified counties) to plaintiff. Even so, there was in each contract a standard termination clause providing that “the performance of work under this contract may be terminated by the Government in accordance with this clause in whole, or from, time to time in part, whenever the contracting officer shall determine that such termination is in the best interests of the Government” (finding 8, emphasis added). The defendant did not invoke this clause as it could have (see footnote 3, infra), but instead acted on the assumption (which plaintiff now challenges) that the contracts were not “requirements” but “indefinite quantities” agreements, allowing the Government to order elsewhere at will. 2*****In comparable circumstances we have held that the failure of the defendant to invoke the convenience-termination article makes no difference, and that that clause nevertheless sets the limit to any possible recovery. John Reiner & Co. v. United States, 325 F.2d 438, 163 Ct.Cl. 381 (1963) cert. denied, 377 U.S. 931, 84 S.Ct. 1332, 12 L.Ed.2d 295 (1964); Brown & Son Electric Co. v. United States, 325 F.2d 446, 163 Ct.Cl. 465 (1963). Cf. Goldwasser v. United States, 325 F.2d 722, 163 Ct.Cl. 450 (1963). In Reiner and Brown Electric, •the Government canceled the contracts, not under the termination article but because the Comptroller General had ruled them illegal. We held the contracts lawful but restricted the contractors to the amounts recoverable under the termination clause since that provision could properly have been invoked by the contracting officer. The justifications actually given for the cancellations were not valid, but “a good ground did exist” for ending the contractors’ performance “in the far-reaching right to terminate under the termination article.” John Reiner & Co., supra, 325 F.2d at 443, 163 Ct.Cl. at 392. That adequate cause for cancellation cured the defective reason which prompted the" }, { "docid": "21141008", "title": "", "text": "Office Regulations also permits the making of an award despite the filing of a protest where “factors * * * will not permit a delay * * * .” 4 CFR § 20.4 (1973). 3h this connection, the General Accounting Office will consider protests not only against a proposed award, but also against awards already made (4 CFR § 20.1) so that had plaintiff not withdrawn its protest, it apparently could have received a decision from the Comptroller General despite the fact that the Architect made the award before plaintiff filed its protest. The Comptroller General has ruled that awards made were improper and that contracts executed pursuant thereto should be cancelled. See John Reiner & Co. v United States, 163 Ct. Cl. 381, 325 F. 2d 438 (1963), cert. denied 377 U.S. 931 (1964); Albano Cleaners, Inc. v. United States, supra. For all of the reasons hereinabove set forth, plaintiff is not entitled to recover. FINDINGS OK FACT 1. Plaintiff is a Maryland corporation engaged in the construction business. Its principal place of business was at all times relevant herein, located in Riverdale, Maryland, and it was, at all such times, qualified to do business in the District of Columbia. 2. By an Invitation for Bids dated December 1,1970, the Acting Architect of the Capitol, Mario E. Campioli, invited lump sum bids for the furnishing of all labor, equipment and materials and performing all work necessary for the excavation and foundation for the Library of Congress, James Madison Memorial Building, Washington, D.C. Included in the invitation were a statement of Bidding Conditions, a Bid Form, a Bidder’s Qualification statement, a form of the Construction Contract to be entered into, statements of General Conditions and Special Provisions, and detailed specifications governing the work. The bids were to be opened on January 15,1971. The work contemplated by this invitation was designated as “Job No. 7093.” Plaintiff submitted a bid. 3. Prior to the issuance of the December 1,1970 invitation for bids, the Architect of the Capitol had determined that construction of the Madison Building would be accomplished in four separate stages:" }, { "docid": "10620959", "title": "", "text": "on the face of the statute and the regulations unlike those cases in which we gave the contractor the benefit of the doubt because invalidity was not clear and the contrary position was reasonable. See John Reiner & Co. v. United States, 163 Ct. Cl. 381, 386-89, 325 F. 2d 438, 440-42 (1963), cert. denied 377 U.S. 931 (1964); Brown & Son Electric Co. v. United States, 163 a. Cl. 465, 325 F. 2d 446 (1963); Coastal Oargo Co. v. United States, 173 Ct. Cl. 259, 351 F. 2d 1004 (1965); Warren Bros. Roads Co. v. United States, 173 Ct. Cl. 714, 355 F. 2d 612 (1965). Where illegality is clear, we have no choice 'but to hold the award and contract to be invalid. Since the Department of the Interior’s regulations, based on the Federal Procurement Eegulations mandated by the Federal Property and Administrative Services Act of 1949, were not followed, the contract at issue here was invalid and of no effect. Therefore, the rescinding of the contract was not a breach. Accordingly, defendant’s motion for summary judgment is granted, plaintiffs’ cross motion is denied, and the case is dismissed." }, { "docid": "21164903", "title": "", "text": "award, the appellant will be deemed to have waived its rights of appeal insofar as the pending procurement is concerned.” 41 C.F.R. § 1-1.703-2(d), (f) (1967). There is not, and could not be, any question of apparent authority. E.g., W. H. Whiteside & Co. v. United States, 93 U.S. 247, 256-57 (1876) ; Arthur Venneri Co. v. United States, 180 Ct. Cl. 920, 924-5, 381 F. 2d 748, 750 (1967). In Prestew the contracting officer, in accepting the plaintiff’s bid, did not exercise any discretion to decide, on the basis of the known facts, that there was no such substantial deviation. Because of the cryptic nature of the bidder’s exception, the officer did not realize that the bid was quite unresponsive (or could be said to be so) and therefore he failed to see that there was any problem at all. See 162 Ct. Cl. at 623, 625, 320 F. 2d at 369-70, 371. Moreover, the plaintiff’s gross departure was unmistakably plain once the facts were revealed. Id. at 623-24, 627, 320 F. 2d at 370-71, 372-73. In a series of cases beginning with John Reiner & Co. v. United States, 163 Ct. Cl. 381, 325 F. 2d 438 (1963), cert. denied, 377 U.S. 931 (1964), the court has held that, where the contracting officer has adverted to the issue which gives rise to the problem, “has viewed the award as lawful, and it is reasonable to take that position under the legislation and regulations, the court should normally follow suit” and should “impose the binding stamp of nullity only when the illegality is plain.” 163 Ct. Cl. at 386, 325 F. 2d at 440; see Brown & Son Elec. Co. v. United States, 163 Ct. Cl. 465, 325 F. 2d 446 (1963) ; Warren Bros. Roads Co. v. United States, 173 Ct. Cl. 714, 355 F. 2d 612 (1965) ; Coastal Cargo Co. v. United States, 173 Ct. Cl. 259, 351 F. 2d 1004 (1965). The regulations involved were substantially the same as SBA Regulation i 121.3-8 and Federal Procurement Regulation § 1-1.703-1, which are quoted supra. Any notion" }, { "docid": "23210667", "title": "", "text": "to the court’s attention. There was nothing to show in any clear-cut way that defendant’s officers violated any law that governed their acts in refusing to adjust the bid or rescind for the mistake. The court, as then constituted, would reform a contract when general equitable principles so dictated, even when signed with knowledge of the mistake, as appears in Rappoli v. United States, 98 Ct. Cl. 499 (1943). The facts there were like Massman1 s except that defendant’s officers procured Rappoli’s signature to the contract at the bid price by promising they would get it reformed later, and this they failed to do. As we showed in Chernick, supra, the law respecting mistaken bids has become more lenient towards the bidder in the years that have elapsed since 1945. The ASPR is law which governs the award and interpretation of contracts as fully as if it were made a part thereof. G. L. Christian & Assoc. v. United States, 160 Ct. Cl. 1, 312 F. 2d 418, reh. denied, 160 Ct. Cl. 58, 320 F. 2d 345, cert. denied, 375 U.S. 954 (1963). It is binding on defendant’s officers. Newport News Shipbuilding & Dry Dock Co. v. United States, 179 Ct. Cl. 97, 374 F. 2d 516 (1967). Defendant says that this part of ASPR was not made for the benefit of bidders. Defendant cites Hartford Accident & Indemnity Co. v. United States, 130 Ct. Cl. 490, 492-4, 127 F. Supp. 565, 566-67 (1955) which makes a like holding, but with, respect not to this part of ASPE but to a 'different regulation prescribing standard forms of construction contracts. The only other citation is to a 'Comptroller General’s decision on a wholly distinct part of ASPE. We do not think it possible to determine that all of ASPE was or was not made for the benefit of bidders. Different parts may have different purposes. We have only just now held that provisions of ASPE providing a “weighted guidelines method” for determining a reasonable level of profit under an escalation clause could be invoked by a contractor against an administrative" }, { "docid": "6095994", "title": "", "text": "which the court, following the Reiner approach, has refused to invalidate an award are Mid-West Constmcetion, Ltd. v. United States, 181 Ct. Cl. 774, 387 F.2d 957 (1967); Warren Brothers Roads Co. v. United States, 173 Ct. Cl. 714, 355 F.2d 612 (1965); Coastal Cargo Co. v. United States, 173 Ct. Cl. 259, 351 F.2d 1004 (1965); and Brown & Son Electric Co. v. United States, 163 Ct. Cl. 465, 325 F.2d 446 (1963). This is not to say that the Supply Center would be forever estopped from ceasing to grant contracts containing such a qualification if it decided to do so as a matter of judgment and policy, and as it apparently did with respect to another kind of qualification which Oompeco had employed. But this is entirely different from awarding a contract with such a qualification, as it had done for many years, and then asking a court to declare its award action a nullity on the ground of its own alleged illegality. While the erroneous use of an illegal procedure in similar procurements is immaterial where the practice is plainly forbidden by statute or regulation, Schoenbrod v. United States, 187 Ct. Cl. 627, 410 F.2d 400 (1969), such an established practice is, as shown by Reiner, relevant, in cases not involving plain illegality, in considering the question of ibid responsiveness 'and agency reasonableness in treating a qualification as insubstantial. Defendant argues further that, because the contracting officer, in making the award, did not personally know of the qualification (the officer so testified), there was no meeting of the minds and that no valid contract was, therefore, ever formed. The contracting officer had not personally read in its entirety the Invitation for Bids, upon which plaintiff’s bid was submitted and which included the qualification it had inserted on page 14. This contention has no merit. A unilateral mistake, even assuming there was one here, does not serve to relieve a party of his contractual obligations. Allied Contractors, Inc. v. United States, 159 Ct. Cl. 548, 810 F. 2d 945 (1962). “Any other rule would throw chaos into all" }, { "docid": "21164904", "title": "", "text": "370-71, 372-73. In a series of cases beginning with John Reiner & Co. v. United States, 163 Ct. Cl. 381, 325 F. 2d 438 (1963), cert. denied, 377 U.S. 931 (1964), the court has held that, where the contracting officer has adverted to the issue which gives rise to the problem, “has viewed the award as lawful, and it is reasonable to take that position under the legislation and regulations, the court should normally follow suit” and should “impose the binding stamp of nullity only when the illegality is plain.” 163 Ct. Cl. at 386, 325 F. 2d at 440; see Brown & Son Elec. Co. v. United States, 163 Ct. Cl. 465, 325 F. 2d 446 (1963) ; Warren Bros. Roads Co. v. United States, 173 Ct. Cl. 714, 355 F. 2d 612 (1965) ; Coastal Cargo Co. v. United States, 173 Ct. Cl. 259, 351 F. 2d 1004 (1965). The regulations involved were substantially the same as SBA Regulation i 121.3-8 and Federal Procurement Regulation § 1-1.703-1, which are quoted supra. Any notion that the OUs rule is limited to eases in which the bidder rather than the Government is trying to avoid the contract is dispelled by the court’s statement that, “[I]n the absence of fraud [or bad faith, or the like], defendant was equally bound on the contract with plaintiff.” 161 Ct. Cl. at 699, 316 F. 2d at 940. The Comptroller General has declined, on occasion, to cancel contracts despite the SBA’s post-award determination that the bidder was not eligible. See 8 C.C.F. ¶ 71574 (1961) (B-145948). Compare 9 C.C.F. ¶ 72776 (1964) (No. B—154453) ; 9 C.C.F. ¶ 72697 (1964) (No. B-154428) ; 34 Comp. Gen. 115 (1954) (No. B—121145). There is nothing in the paragraph which confines this authority to the period prior to a determination by the SBA regional office (or other low-level determination), and it would be extraordinary to limit it in that fashion since injurious delay can more readily be found the longer the SBA takes to make its ultimate determination. It is significant that the Federal Procurement Regulations on" }, { "docid": "23066766", "title": "", "text": "court should normally follow suit. Any other course could place the contractor in an unfortunate dilemma. If he questions the award and refuses to accept it because of his own doubts as to possible illegality, the contracting officer could forfeit his bid bond for refusing to enter into the contract. The full risk of an adverse decision on validity would then rest on the bidder. If he accedes to the contracting officer and commences performance of the contract, a subsequent holding of non-enforceability would lead to denial of all recovery under the agreement even though the issue of legality is very close; and under the doctrine of quantum meruit there would be no reimbursement for expenses incurred in good faith but only for any tangible benefits actually received by the defendant. United States v. Mississippi Valley Generating Co., 364 U.S. 520, 566 n. 22, 81 S.Ct. 294, [317 n. 22] 5 L.Ed.2d 268 (1961); Clark v. United States, 95 U.S. 539, 542, [5 Otto 539, 542] 24 L.Ed. 518 (1877). It is therefore just to the contractor, as well as to the Government, to give him the benefit of reasonable doubts and to uphold the award unless its invalidity is clear. 325 F.2d at 440 (footnote omitted). After determining that the invalidity of the contract award was not plain, the court held “that the award to plaintiff must be deemed lawful, not void.” Id. at 442 (emphasis added). Notwithstanding the “deemed” initial lawfulness of the contract, the Reiner court did not award damages for its breach. Rather, the court converted the rescission of the contract into a termination under the contract’s termination-for-convenience-of-the-government clause. The contract was, thus, treated as valid up to the time of cancellation. Accord, Brown & Son Electric Co. v. United States, 325 F.2d 446 (Ct.Cl.1963) (contract cancelled by agency, after Comptroller General upheld protest, held voidable and terminated for convenience because “no plain illegality”); Warren Brothers Roads Co. v. United States, 355 F.2d 612 (Ct.Cl.1965) (contract cancelled, after protest, held voidable because illegality was not “palpable”). Under a termination-for-the-convenience-of-the-government clause, the amount of recovery is the" }, { "docid": "6095993", "title": "", "text": "contractor in such a situation decides to commence “performance of the contract, a subsequent holding of non-enforceability would lead to denial of all recovery under the agreement even though the issue of legality is very close; and under the doctrine of quantum meruit there would be no reimbursement for expenses incurred in good faith but only for any tangible benefits actually received by the defendant.” 163 Ct. Cl. at 387, 325 F. 2d at 440. It is therefore just to the contractor, as well as to the Government, to give him the benefit of reasonable doubts and to uphold the award unless its invalidity is clear. In “applying that norm” and refusing to consider the “award to have been a nullity,” the court in Reiner too looked to the “other occasions” wherein the contractor had answered “the same type of invitation” and “had been granted the contracts,” such method of purchasing having become “an accepted form of procurement by” the agency there involved. 163 Ct. Cl. at 387, 325 F.2d at 440-41. Similar instances in which the court, following the Reiner approach, has refused to invalidate an award are Mid-West Constmcetion, Ltd. v. United States, 181 Ct. Cl. 774, 387 F.2d 957 (1967); Warren Brothers Roads Co. v. United States, 173 Ct. Cl. 714, 355 F.2d 612 (1965); Coastal Cargo Co. v. United States, 173 Ct. Cl. 259, 351 F.2d 1004 (1965); and Brown & Son Electric Co. v. United States, 163 Ct. Cl. 465, 325 F.2d 446 (1963). This is not to say that the Supply Center would be forever estopped from ceasing to grant contracts containing such a qualification if it decided to do so as a matter of judgment and policy, and as it apparently did with respect to another kind of qualification which Oompeco had employed. But this is entirely different from awarding a contract with such a qualification, as it had done for many years, and then asking a court to declare its award action a nullity on the ground of its own alleged illegality. While the erroneous use of an illegal procedure in similar" }, { "docid": "15425192", "title": "", "text": "concerning responsibility determinations are cryptic, but this court in Trilon, 578 F.2d at 1360, and the Comptroller General have recognized that we may look to the more extensive debarment regulations for guidance, at least on questions related to the “integrity and business ethics” requirement. See, e.g., Steptoe & Johnson, Comp. Gen. Dec. B-166118, 1969 WL 4287, at *5 (Mar. 28, 1969); Secretary of the Army, 39 Comp. Gen. 868, 872,1960 WL 1741 (1960). In this case, Garufi alleges that the contracting officer’s responsibility determination is arbitrary because JVC does not fulfill the “satisfactory record of integrity and business ethics” requirement of FAR 9.104-l(d). This is said to be so because of the alleged involvement of Carmelo La Mastra and his relatives in JVC, and the findings of the Italian court in 1997 that Carmelo La Mastra engaged in criminal activities with respect to earlier contracts at the Sigonella base. Two relevant propositions are established by earlier cases and supported by the debarment regulations. First, past criminal activities by a corporate officer do not automatically establish that the bidder fails the responsibility requirement. Trilon involved a suit for damages against the government under the Tucker Act. The government defended on the ground that the contract was void ab initio because the president of the contractor’s parent company had been criminally convicted of fraud in connection with government contracts, and that the contracting officer therefore lacked authority to find the contractor qualified. Trilon, 578 F.2d at 1359. The government urged that the conviction “irrefutably demonstrates a lack of requisite business integrity on the part of the plaintiff [a subsidiary company], preventing [the plaintiff] from qualifying as a re-sponsible bidder.” Id. The court rejected this argument, noting that such imputation was not mandatory under the regulations. See id. at 1361. The court stated that “even had the contracting officer been cognizant of [the president of the parent company’s] criminal conviction, he would still not have been compelled to make a determination of nonresponsibility” and that “it would have been within the sound discretion of the contracting officer to choose not to impute this" }, { "docid": "14239912", "title": "", "text": "difference, and that that clause nevertheless sets the limit to any possible recovery. John Reiner & Co. v. United States, 325 F.2d 438, 163 Ct.Cl. 381 (1963) cert. denied, 377 U.S. 931, 84 S.Ct. 1332, 12 L.Ed.2d 295 (1964); Brown & Son Electric Co. v. United States, 325 F.2d 446, 163 Ct.Cl. 465 (1963). Cf. Goldwasser v. United States, 325 F.2d 722, 163 Ct.Cl. 450 (1963). In Reiner and Brown Electric, •the Government canceled the contracts, not under the termination article but because the Comptroller General had ruled them illegal. We held the contracts lawful but restricted the contractors to the amounts recoverable under the termination clause since that provision could properly have been invoked by the contracting officer. The justifications actually given for the cancellations were not valid, but “a good ground did exist” for ending the contractors’ performance “in the far-reaching right to terminate under the termination article.” John Reiner & Co., supra, 325 F.2d at 443, 163 Ct.Cl. at 392. That adequate cause for cancellation cured the defective reason which prompted the defendant to act. A party to a contract may “justify an asserted termination, rescission, or repudiation, of a contract by proving that there was, at the time, an adequate cause, although it did not become known to him until later.” College Point Boat Corp. v. United States, 267 U.S. 12, 16, 45 S.Ct. 199, 201, 69 L.Ed. 490 (1925). The same principle applies here. Even though the two contracts be read to call upon the Government to fill all of its requirements through plaintiff’s services, it cannot be denied that the Government had also reserved the right to terminate plaintiff’s performance, either wholly or partially. If the contracting officer had accepted the agreements as “requirements” contracts, he could still have satisfied his desire to place some orders elsewhere by invoking the right of partial termination, “from time to time” if necessary, under the convenience-ter mination article. It follows that, even on plaintff’s view of the nature of the contracts, there was justifiable cause— the right to terminate — for what the defendant did. That justifiable" }, { "docid": "16115609", "title": "", "text": "Thus, defendant asks us to declare that the contracting officer erred when he deter mined that a condition of -urgency existed. We can assume that, under appropriate circumstances, a court could overturn the decision of a contracting officer that an award must be made without delay. However, this is not a case where interference with the discretion of .the contracting officer would be proper. The rejection of the low bidders took place at the meeting held on September 10-11, 1958. Finding. 12,- m/m'. Thus, at that point, it became necessary for the contracting officer to determine whether to submit the matter to the SBA. In light of the existing conditions, we cannot say that the decision reached by the contracting officer was either unreasonable or improper. For example, the Air Force desired the airlift service to begin by October 1, 1958, and this left a relatively short time for completing award of the contract and commencing performance. Therefore, we conclude that the contracting officer did comply with the regulations and that award of the contract to plaintiff was proper and valid. Cf. John Reiner & Co. v. United States, 163 Ct. Cl. 381, 387, 325 F. 2d 438 (1963), cert. denied, 377 U.S. 931 (1964). It follows that plaintiff is entitled to recover. As to the proper theory of recovery, our decision in Reiner, supra, is relevant. In Reiner, as in the present case, the plaintiff’s contract was canceled as the result of a GAO ruling that the award was improper. We held that the award to Reiner was not void, but was lawful. 'Slip. op. p. 4. However, Reiner’s recovery was limited to that provided for .in the termination-for-convenience clause. Thus, there was no entitlement to such items as unearned anticipated profits. This court stated, p. 392, the following; * * * The contracting officer on plaintiff’s contract probably thought that he was cancelling the agreement for illegality. That excuse was not a valid justification as we now know, but just as in College Point Boat Corp. [267 U.S. 12 (1925)] a good ground did exist.in the far-reaching right" }, { "docid": "23066767", "title": "", "text": "the contractor, as well as to the Government, to give him the benefit of reasonable doubts and to uphold the award unless its invalidity is clear. 325 F.2d at 440 (footnote omitted). After determining that the invalidity of the contract award was not plain, the court held “that the award to plaintiff must be deemed lawful, not void.” Id. at 442 (emphasis added). Notwithstanding the “deemed” initial lawfulness of the contract, the Reiner court did not award damages for its breach. Rather, the court converted the rescission of the contract into a termination under the contract’s termination-for-convenience-of-the-government clause. The contract was, thus, treated as valid up to the time of cancellation. Accord, Brown & Son Electric Co. v. United States, 325 F.2d 446 (Ct.Cl.1963) (contract cancelled by agency, after Comptroller General upheld protest, held voidable and terminated for convenience because “no plain illegality”); Warren Brothers Roads Co. v. United States, 355 F.2d 612 (Ct.Cl.1965) (contract cancelled, after protest, held voidable because illegality was not “palpable”). Under a termination-for-the-convenience-of-the-government clause, the amount of recovery is the cost of performance plus a reasonable profit on those costs whether or not benefit accrued to the government. See 48 C.F.R. § 52.249-2 (1984); Dairy Sales Corp. v. United States, 593 F.2d 1002, 1004 (Ct.Cl.1979). Trilon Educational Corp. v. United States, 578 F.2d 1356 (Ct.Cl.1979), (which also dealt with cancellation after protest) provided additional guidance on the meaning of “plain” or “palpable” error. In awarding relief, the court distinguished Schoenbrod and Prestex as “situations where the departures from applicable statutes and regulations were both obvious to the bidder and so substantial as to require the conclusion that the putative contracts were void ab initio. ” Id. at 1360. In doing so, the court recognized that its goal was to protect innocent contractors: Procurement officers must find their way through a maze of statutes and regulations, which bidders know little about. It would be unfair for [contractors] to suffer for every deviation. Therefore, when the deviation is not egregious, the court has preferred to allow the contractor to recover on the ground that the contracts were" }, { "docid": "11754986", "title": "", "text": "to go elsewhere for part of its requirements. We need not resolve any of these disputed questions. For the purposes of our determination we can assume, without deciding, that the contracts obligated the Government at all times, including the last year, to give all of its orders for title certificates and insurance (in the specified counties) to plaintiff. Even so, there was in each contract a standard termination clause providing that “the performance of work under this contract may be terminated by the Government in accordance with this clause in whole, or from time to time in part, whenever the contracting officer shall determine that such termination is in the best interests of the Government” (finding 8, emphasis added).. The defendant did not invoke this clause as it could have (see footnote 3, infra), but instead acted on the assumption (which plaintiff now challenges) that the contracts were not “requirements” but “indefinite quantities” agreements, allowing the Government to order elsewhere at will. In comparable circumstances we have held that the failure of the defendant to invoke the convenience-termination article makes no difference, and that that clause nevertheless sets the limit to any possible recovery. John Reiner & Co. v. United States, 163 Ct. Cl. 381, 325 F. 2d 438 (1963), cert. denied, 377 U.S. 931 (1964); Brown & Son Electric Co. v. United States, 163 Ct. Cl. 465, 325 F. 2d 446 (1963). Cf. Goldwasser v. United States, 163 Ct. Cl. 450, 325 F. 2d 722 (1963). In Reiner and Brown Electric, the Government canceled the contracts, not under the termination article but because the Comptroller General had ruled them illegal. We held the contracts lawful but restricted the contractors to the amounts recoverable under the termination clause since that provision could properly have been invoked by the contracting officer. The justifications actually given for the cancellations were not valid, but “a good ground did exist” for ending the contractors’ performance “in the far-reaching right to terminate under the termination article.” John Berner & Co., supra, 163 Ct. Cl. at 392, 325 F. 2d at 413. That adequate cause for" }, { "docid": "10620958", "title": "", "text": "(1947). Furthermore, the Government is not estopped to deny the limitations of his authority. Prestex Inc., supra. It makes no difference that the Department of the Interior had used the procedure employed here in an earlier contract with Fouke. That contract was entered into in 1947, before the enactment of the Federal Property and Administrative Services Act. Moreover, it was not until March 10,1959, that the Department of the Interior was authorized to utilize the provisions of Title III of the Federal Property and Administrative Services Act of 1949,24 F.R. 1921 (March 17,1959), 41 C.F.R. § 14-1.101; it was not until January 26, 1962 that the Department of the Interior actually adopted regulations implementing Title III, 27 F.E. 776 (January 26, 1962), 41 C.F.E. § 14-1.102. Finally, assuming arguendo that the Government had erroneously used these same procedures in other procurements, that is no reason to force the Government to use a practice which is forbidden by applicable regulations. This is a case in which we find the illegality in the award to be plain on the face of the statute and the regulations unlike those cases in which we gave the contractor the benefit of the doubt because invalidity was not clear and the contrary position was reasonable. See John Reiner & Co. v. United States, 163 Ct. Cl. 381, 386-89, 325 F. 2d 438, 440-42 (1963), cert. denied 377 U.S. 931 (1964); Brown & Son Electric Co. v. United States, 163 a. Cl. 465, 325 F. 2d 446 (1963); Coastal Oargo Co. v. United States, 173 Ct. Cl. 259, 351 F. 2d 1004 (1965); Warren Bros. Roads Co. v. United States, 173 Ct. Cl. 714, 355 F. 2d 612 (1965). Where illegality is clear, we have no choice 'but to hold the award and contract to be invalid. Since the Department of the Interior’s regulations, based on the Federal Procurement Eegulations mandated by the Federal Property and Administrative Services Act of 1949, were not followed, the contract at issue here was invalid and of no effect. Therefore, the rescinding of the contract was not a breach. Accordingly, defendant’s" }, { "docid": "21141007", "title": "", "text": "notice to proceed. But again plaintiff points to no statute or regulation which would prevent the Architect from awarding a contract under such circumstances as are here involved without first obtaining a formal decision from the Comptroller General. Cf. the Federal Procurement Regulations issued under the Federal Property and Administrative Services Act, which provide that contracting agencies covered by the Kegulations (the Architect of the Capitol being specifically excluded, 41 CFR §1-1.203 (1972)) need not withhold awards pending final disposition by the Comptroller General of protests. Under § 1-2.407-8 (b) (4) of the Regulations, the contracting officer may, despite the receipt of a protest, nevertheless make the award if he determines that “[t]he items to be procured are urgently required,” or “[d]elivery or performance will be unduly delayed by failure to make award promptly,” or “[a] prompt award will otherwise be advantageous to the Government.” 41 CFR § 1-2.407-8 (b) (4). Section 2.407-8 (b) (3) of the Armed Services Procurement Regulations is identical. 32 CFR § 2.407-8 (b) (3). Section 20.4 of the General Accounting Office Regulations also permits the making of an award despite the filing of a protest where “factors * * * will not permit a delay * * * .” 4 CFR § 20.4 (1973). 3h this connection, the General Accounting Office will consider protests not only against a proposed award, but also against awards already made (4 CFR § 20.1) so that had plaintiff not withdrawn its protest, it apparently could have received a decision from the Comptroller General despite the fact that the Architect made the award before plaintiff filed its protest. The Comptroller General has ruled that awards made were improper and that contracts executed pursuant thereto should be cancelled. See John Reiner & Co. v United States, 163 Ct. Cl. 381, 325 F. 2d 438 (1963), cert. denied 377 U.S. 931 (1964); Albano Cleaners, Inc. v. United States, supra. For all of the reasons hereinabove set forth, plaintiff is not entitled to recover. FINDINGS OK FACT 1. Plaintiff is a Maryland corporation engaged in the construction business. Its principal place of business" } ]

[ { "docid": "18577098", "title": "", "text": "filing will not deprive complainants of their right to proceed before EEOC. See Sharpe v. Philadelphia Housing Authority, 693 F.2d 24, 26 n. 3 (3d Cir.1982). . Regardless of whether state proceedings were actually commenced as they should have been, and as Seredinski alleges they were, it is clear that no such proceedings were terminated prior to expiration of the 300-day period. . It is therefore unnecessary to reach Clifton’s contention that where a state waives deferral, it is the 180-day, rather than the 300-day limitations period that applies. . In addition to these administrative time limitations, ADEA adopts by reference the two year statute of limitations for civil suits from the Portal-to-Portal Act (three years for willful violations), 29 U.S.C. §§ 626(e) and 255. Compliance with the limitation on civil suits is not in issue. . Again, we assume that EEOC followed regulations and deferred to PHRC upon receipt of Seredinski’s charge, thus commencing state proceedings on August 24, 1983. Her law suit was filed on February 17, 1984, more than 60 days later. SAROKIN, District Judge, concurring in part and dissenting in part: Although I concur with the majority as to the federal court’s jurisdiction over plaintiff’s suit to revive her original Title VII claim and as to the timeliness of plaintiff’s ADEA claims, I cannot agree that plaintiff’s subsequent retaliation claim under Title VII was untimely based on this record. As the majority points out, in a Title VII deferral state, such as Pennsylvania, the statute requires that any charge be filed with the EEOC within 300 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e). At the same time, “no charge may be filed ... by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the state or local law, unless such proceedings have been earlier terminated____” 42 U.S.C. § 2000e-5(c). Even if a charge is submitted to the EEOC prior to the 300 day limitation period, it will not be deemed to have been “filed” until this deferral requirement has been fulfilled. Mohasco Corporation v. Silver, 447" } ]

[ { "docid": "23532999", "title": "", "text": "Delaware Department of Labor, the state deferral agency approved by the EEOC. See 42 U.S.C. § 2000e-5(c) (1976). The EEOC did not defer Ms. Kocian’s charge to the state agency because the agency’s ninety-day statute of limitations had run. The affidavit of Johnny J. Butler, District Director of the EEOC, which was submitted by Ms. Kocian in opposition to Getty’s motion for summary judgment, states as follows: Pursuant to the Rules and Regulations of the Commission and the procedures in the Commission’s Compliance Manual, no copy of [Ms. Kocian's] charge was sent to the Delaware Department of Labor because more than ninety (90) days had passed since the complained of event; and this agency has a ninety (90) day filing period. This was the proper procedure at the time. App. at 61a-62a. On March 31, 1981, the EEOC issued a Right to Sue Letter to Ms. Kocian, and she filed suit in district court within ninety days of receipt of that letter. Getty then filed a motion for summary judgment arguing that Ms. Kocian had not filed her charge with the EEOC within 180 days of the date of the last act of discrimination against her as 42 U.S.C. § 2000e-5(e) (1976) requires. The district court granted Getty’s motion and entered judgment against Ms. Kocian. II. Discussion Section 706(d) of Title VII reads in pertinent part: A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred .... 42 U.S.C. § 2000e-5(e) (1976). On appeal Ms. Kocian argues that her filing was timely because that statute allows her 300 days to file a charge with the" }, { "docid": "18577079", "title": "", "text": "the EEOC alleging that her salary was reduced in retaliation for the charge of discrimination she previously filed with the PHRC. It does not appear that Seredinski filed this second charge with the PHRC, and it is unclear whether EEOC deferred the charge to the state agency. After an EEOC investigation, she was given notice of her right to sue. App. at 33. Seredinski filed suit in the district court on February 17,1984. She alleged that her initial demotion was discriminatory and that the subsequent wage reduction was retaliatory, in violation of Title VII, ADEA, and the Pennsylvania Human Rights Act. She included a claim for breach of an implied covenant of good faith and fair dealing as well as for intentional infliction of emotional distress. The final count of the complaint averred that the salary reduction was a breach of the settlement agreement which disposed of her initial charge. In response to the complaint, Clifton filed a motion to dismiss, arguing that the Title VII and ADEA claims were time barred and requesting the court not to exercise pendent jurisdiction over the state claims. Before responding to Clifton’s motion, Seredinski amended her complaint, adding an entirely new theory — fraud in the inducement of the PHRC settlement agreement. She alleged that Clifton told her before, during, and after the signing of the settlement agreement that her salary would not be reduced, and that she would never have signed the agreement but for this representation. Accordingly, she also amended her prayer for relief to seek a declaration that the settlement was void and “a full resolution of all issues relating to the original complaint before the EEOC and PHRC as though those administrative proceedings were not terminated by said Agreement.” App. at 61. On September 6, 1984, the district court dismissed Seredinski’s complaint in its entirety, finding that the Title VII and ADEA claims arising from the alleged retaliation were time barred and that the fraudulent inducement claim arose under state, rather than federal law. With no federal claims remaining, the district court declined to exercise jurisdiction over the pendent" }, { "docid": "18577090", "title": "", "text": "agency in order to sue in federal court, she need not do so within the applicable state statute of limitations. 441 U.S. at 761-62, 99 S.Ct. at 2074. We stated in Kocian: The new regulation indicates that the EEOC will now forward charges to state agencies, even though untimely, to allow the state agencies to consider the charges if they so desire. Consistent with Oscar Mayer, federal claimants will be entitled to the 300 day period for filing with the EEOC, even if the state filing is untimely. 707 F.2d at 752 n. 4. The district court correctly interpreted this EEOC regulation to be a codification of Oscar Mayer, rather than an attempted overruling of Mohasco or redrafting of Title VII. As such, it does not even purport to disturb the 240-day rule or change the result in this case. Finally, Seredinski contends that under a 1982 Worksharing Agreement between EEOC and PHRC, PHRC has waived its exclusive 60-day right to resolve Title VII charges initially processed by the EEOC. (Such waiver is authorized by statute. 42 U.S.C. § 2000e-5(d).) She argues that where there has been a waiver, the 60-day deferred requirement no longer applies, and that charges, received by the EEOC may be immediately deemed filed. Cf. Douglas v. Red Carpet Corp., 538 F.Supp. 1135, 1138-39 (E.D.Pa.1982). Under this theory, Seredinski’s retaliation charge would be deemed filed on the 280th day. Seredinski has not cited to us any reference to her having raised this argument before the district court, and thus it should be deemed waived on appeal. In any event, we note that it is not at all clear that Seredinski’s charge is one for which the PHRC would waive 60-day deferral. Under Paragraph III(c) of the Worksharing Agreement, PHRC initially processes, inter alia, “[a]ny charge where the PHRC is a party to a Conciliation Agreement or a Consent Decree which, upon mutual consultation and agreement is determined to be relevant to the disposition of the charge,” and “[a]ny charge alleging retaliation for filing a charge with PHRC or for cooperating with the PHRC.” App. at 23-24." }, { "docid": "23533018", "title": "", "text": "it “assume[d] that the Pennsylvania Human Rights Commission did indeed receive the plaintiffs administrative charge pursuant to the EEOC regulations.” Id. at 26 n. 3. The court explained that it was undisputed on appeal that EEOC regulations required deferral by the EEOC to the appropriate state agency. Id. The instant case presents quite a different scenario. The affidavit which Ms. Kocian herself submitted to the district court makes it clear that EEOC regulations at the time did not require it to defer Ms. Kocian’s charge. In this case the failure to defer to the state agency is not attributable to the EEOC’s failure to follow its own regulations. Thus we cannot hold that the 300-day limitations period applies here because we cannot “assume,” as the Sharpe court could, that the EEOC made the appropriate deferral according to its regulations. . Ms. Kocian explains that after her constructive discharge on February 16, 1980, she was forced to search for a new job while caring for her minor child and her seriously ill mother. She also states that she was forced to seek professional counseling as a result of her discharge. . It is not clear whether Ms. Kocian is now arguing on appeal that the EEOC’s failure to defer her charge constitutes grounds for equitable tolling. See Roberts v. Arizona Bd. of Regents, 661 F.2d 796 (9th Cir.1981). To the extent that Ms. Kocian is now raising that argument, we reject it for two reasons. First, Ms. Kocian argued below that the EEOC followed all its regulations regarding the deferral of charges. See note 5 supra. Second, there is no indication that the EEOC misled Ms. Kocian into thinking that it would defer her charge nor is there any indication that Ms. Kocian relied on the EEOC to make the deferral. In her affidavit Ms. Kocian specifically states that she had no knowledge of the deferral policies of the EEOC. App. at 45a. In the absence of a procedural violation by the EEOC and in the absence of any reliance on Ms. Kocian’s part, we see no grounds for equitable tolling." }, { "docid": "18577103", "title": "", "text": "is subject to “waiver as well as tolling when equity so requires.” Id. Where, as here, the EEOC has failed, in violation of its own regulations, to defer the plaintiffs charge to the appropriate state agency, and the plaintiff is thus deprived of the opportunity in a timely manner to fulfill the requirement that proceedings be commenced and terminated in the state deferral agency before her charge can be deemed filed with the EEOC, there is ample ground for equitably tolling the limitation period to afford the plaintiff an opportunity to attempt to meet this prerequisite to suit. See Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 752-53 and ns. 4 & 8 (3d Cir.), cert. denied 464 U.S. 852, 104 S.Ct. 164, 78 L.Ed.2d 150 (1983) (suggesting that the EEOC’s failure to comply with its own regulations requiring deferral to state agency would constitute grounds for equitable tolling in Title VII action); see also McKee v. McDonnell Douglas Technical Services Co., 700 F.2d 260, 264 (5th Cir.1983) (Title VII claimant should not be penalized for EEOC’s failure to follow its own regulations); Hicks v. ABT Associates, Inc., 572 F.2d 960, 964 (3d Cir.1978) (same). Such equitable tolling is especially warranted in this instance in light of the “sound and established policy that procedural technicalities should not be used to prevent Title VII claims from being decided on the merits.” Gooding v. Warner-Lambert Co., 744 F.2d 354, 358-59 (3d Cir.1984). Given the existence of grounds for tolling the 300-day limitation period, the procedure of staying the district court action and remanding the matter comports with that endorsed by the Supreme Court in Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979) (appropriate procedure, where plaintiff has failed to comply with requirement of resort to state remedies in employment discrimination action, is to stay district court proceedings until procedural prerequisite can be fulfilled). The majority apparently has chosen to assume that plaintiff’s charge was deferred by the EEOC, relying on allegations in plaintiff’s amended complaint. It is true that, in her amended" }, { "docid": "543170", "title": "", "text": "The first injunction was to file within 180 days. The second was, if you are in a state with an appropriate agency, you have up to 240 days. Further, in some cases, you may have up to 300 days, but check with the Commission. Plaintiff asserts that because she was puzzled by the information in the brochure, she did call somebody at the Commission and was told that she had up to 300 days in which to file and that, ultimately, when she did file on the 299th day, her filing was accepted. Plaintiff argues that her late filing was due to her reasonable reliance upon these statements and actions by the EEOC. The Third Circuit has noted, when faced with similar arguments, “That equitable tolling is particularly appropriate in cases involving ‘lay persons unfamiliar with the complexities of administrative procedures.’ We have distinguished those cases, however, from cases such as this one involving Title VII litigants who are represented by counsel.” Kocian, 707 F.2d at 755. In the present action, if plaintiff had shown that she was a novice as to the problems involved in filing employment discrimination claims and had only the advice of the agency as to the appropriate time for filing the complaint, equitable tolling might be warranted. But the evidence shows only that the plaintiff possessed more than average knowledge about the operating of anti-discrimination laws since she had dealt with such issues when she worked at an employment office before working at Temple University Hospital. Furthermore, it is apparent, from plaintiff’s deposition, that she had retained an attorney before she filed her EEOC charge. At what point that legal representation commenced, one cannot tell from the record. However, from the evidence marshalled by plaintiff it is hard to see that plaintiff has shouldered her burden of showing that she has been precluded by the information received from the EEOC from effectively vindicating her rights. Accordingly, I conclude that the filing under Title VII claim was tardy and that there are no grounds for forgiveness, and defendant is entitled to summary judgment on the Title" }, { "docid": "23532996", "title": "", "text": "OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge: Charlotte T. Kocian filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging that her employer, Getty Refining and Marketing Company (“Getty”), discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1976 & Supp. III 1979). Getty filed a motion for summary judgment asserting that Ms. Kocian’s action was barred by the statute of limitations in 42 U.S.C. § 2000e-5(e) (1976). The district judge granted Getty’s motion, and Ms. Kocian appeals. We will affirm. I. Background Ms. Kocian was employed by Getty as a chemical engineer at its Delaware City, Delaware refinery from October 29, 1979, until February 16, 1980. She alleges, inter alia, that on February 16, 1980, she was “constructively discharged” after a dispute with her supervisor. Ms. Kocian went to the Philadelphia area Equal Opportunity Commission (“EEOC”) to file a discrimination charge against Getty on May 19, 1980. The office closed before she could see a counselor, but she did fill out a preliminary intake form. She was told that a counselor would be in touch with her. Ms. Kocian retained counsel (not her counsel in this appeal) and first met with her on August 4, 1980, 170 days after the discharge. She returned with her lawyer to the EEOC office on August 11, 1980, 177 days after her discharge. Ms. Kocian, her lawyer, and an EEOC intake officer began drafting her charge but did not complete their drafting on that day. On the following day the EEOC officer called Ms. Kocian to read her his completed proposed charge and to indicate that he would mail it to her for her signature. On August 15, 1980, the 181st day after the discharge, he mailed the “potential charge” to Ms. Kocian and told her to review it, sign it, and return it to the EEOC “[i]n order for the Commission to proceed any further.” App. at 60a. He also stated that “[bjecause a charge must be filed within the time limitation" }, { "docid": "5157681", "title": "", "text": "with the EEOC, arguing that Berkoski failed to follow the procedures set forth in 29 C.F.R. § 1601.13(b)(2), which governs a situation in which the charging party fails to request that a charge be presented to the EEOC. This argument ignores the significance of Berkoski’s notation upon a prepared agency form that the charge be referred to the EEOC for dual filing. Berkoski’s action is significant because one of the other available prepared form responses was that the PHRC was not to refer the action to any other agency. Berkoski, therefore, clearly demonstrated his intent that a dual filing occur. Ashland’s arguments to the contrary are without merit. . Even if I were to hold that the charge was not properly filed with the EEOC by the 300th day as required under the statute, I would still not dismiss this case. As noted earlier, the worksharing agreement provides that the PHRC will file charges involving claims under Title VII and the ADEA within two working days of receipt. Further, Berkoski evidenced an intent to have a dual filing by marking a box that provided for referral of the action to the EEOC. Given these circumstances, the doctrine of equitable tolling would be appropriate. See Brown, 963 F.2d at 900 (holding that it would be improper to dismiss an action on the basis of a bureaucratic mistake). Contrary to Ashland’s assertion, Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 755 (3d Cir.), cert. denied 464 U.S. 852, 104 S.Ct. 164, 78 L.Ed.2d 150 (1983), did not create a blanket prohibition against equitable tolling in Title VII cases when a plaintiff is represented by counsel. In fact, our Cotut of Appeals recognized that under \"extraordinary” circumstances, equitable tolling is appropriate in Title VII situations, regardless of the presence of counsel. Id. Given the justified reliance by Berkoski’s counsel on the worksharing agreement, I find that there are \"extraordinary’’ circumstances in this case that warrant equitable tolling." }, { "docid": "15848645", "title": "", "text": "the court uses December 4 as the date of notice. The essence of Jones's argument is that the EEOC and the PHRC were parties to a worksharing agreement under which each organization designated the other as an authorized agent for the purposes of receiving charges. Furthermore, under the contract, the EEOC agreed to refer all age complaints to the PHRC on a weekly basis. Jones filed his charges with the EEOC 280 days after the December 4 notice. Therefore, he argues, the court should presume that the EEOC forwarded the charges to the PHRC within one week. The charges would thus have been before the PHRC by the 287th day, and his complaint is timely. Even if the EEOC did not forward the charges, Jones argues, he should not be penalized by the EEOC’s failure to follow its regulations. We agree that, under some circumstances, it would be unjust to preclude Jones’s claim based on the omission of the EEOC. For example, in Seredinski v. Clifton Precision Products Co., 776 F.2d 56 (3d Cir. 1985), the plaintiff filed a charge with the EEOC 280 days after the alleged discrimination. It was unclear from the record whether the EEOC referred the charges to the PHRC, but the court assumed that it had because, “[w]e have previously made it clear that the failure of EEOC to follow its regulations and refer charges to an appropriate state agency for filing will not deprive complainants of their right to proceed before the EEOC.” Id. at 61, n. 7. See also Gabrielle v. Barrett, Haentjens & Co., 663 F.Supp. 1187, 1191-92 (M.D.Pa. 1986) (protecting the plaintiff from the EEOC’s inaction because he was pro se). The mere fact that Jones filed with the EEOC within the 300 day limitation, however, is not sufficient to preserve his right to sue in federal court. In Jackson v. Savin Corp., 43 F.E.P. Cases 1575, 1987 WL 17007 (D.N.J.1987), the plaintiff filed a charge with the EEOC 297 days after the alleged discriminatory act. The EEOC forwarded a letter to the PHRC on day 309. The court expressed uncertainty" }, { "docid": "23533000", "title": "", "text": "not filed her charge with the EEOC within 180 days of the date of the last act of discrimination against her as 42 U.S.C. § 2000e-5(e) (1976) requires. The district court granted Getty’s motion and entered judgment against Ms. Kocian. II. Discussion Section 706(d) of Title VII reads in pertinent part: A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred .... 42 U.S.C. § 2000e-5(e) (1976). On appeal Ms. Kocian argues that her filing was timely because that statute allows her 300 days to file a charge with the EEOC. In the alternative she argues that even if the 180-day period applies, the circumstances of her case warrant an equitable tolling of the statute of limitations. A. The Applicable Limitations Period Ms. Kocian argues that the applicable limitations period for filing with the EEOC is 300 days. She asserts that her charge filed on October 3, 1980, 230 days after her discharge, is therefore timely. Getty contends, however, that the 300-day limitations period for filing with the EEOC only applies in deferral states when proceedings have been instituted in the state or local agency. Getty argues that because neither Ms. Kocian nor the EEOC instituted proceedings with the Delaware Department of Labor, Kocian is not entitled to the extended 300-day time period. We agree. The plain language of the statute supports Getty’s position. The statute makes clear that the 300-day period applies only when “the person aggrieved has initially instituted proceedings with a State or local agency.” 42 U.S.C. § 2000e-5(e) (1976). The purpose behind the extended 300-day limitations period also supports Getty’s position." }, { "docid": "15848646", "title": "", "text": "the plaintiff filed a charge with the EEOC 280 days after the alleged discrimination. It was unclear from the record whether the EEOC referred the charges to the PHRC, but the court assumed that it had because, “[w]e have previously made it clear that the failure of EEOC to follow its regulations and refer charges to an appropriate state agency for filing will not deprive complainants of their right to proceed before the EEOC.” Id. at 61, n. 7. See also Gabrielle v. Barrett, Haentjens & Co., 663 F.Supp. 1187, 1191-92 (M.D.Pa. 1986) (protecting the plaintiff from the EEOC’s inaction because he was pro se). The mere fact that Jones filed with the EEOC within the 300 day limitation, however, is not sufficient to preserve his right to sue in federal court. In Jackson v. Savin Corp., 43 F.E.P. Cases 1575, 1987 WL 17007 (D.N.J.1987), the plaintiff filed a charge with the EEOC 297 days after the alleged discriminatory act. The EEOC forwarded a letter to the PHRC on day 309. The court expressed uncertainty about whether the letter constituted an actual filing with the PHRC, but held that even if it were a filing, it was untimely. Id. at 1577. The court held that Congress’s intent to limit federal jurisdiction over discrimination claims would be undermined if the courts did not adhere to the 300 day limitation strictly. Id. The court did not address the EEOC’s responsibility or lack thereof for referring the charges to the PHRC. Several courts have addressed the effects of allegedly misleading or false information provided by an EEOC representative. In Schier v. Temple University, 576 F.Supp. 1569 (E.D.Pa.), aff'd and remanded, 742 F.2d 94 (3d Cir.1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2018, 85 L.Ed.2d 300 (1985), the court considered an argument by the plaintiff that she filed her charge with the EEOC late because they had told her on the phone that she had 300 days when, in fact, she did not. The court refused to apply the equitable tolling doctrines because, as a former employee of an employment office, she had" }, { "docid": "18577088", "title": "", "text": "100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). See also Shaffer v. National Can Corporation, 565 F.Supp. 909, 911 (E.D.Pa.1983). Seredinski concedes that she was aware of the allegedly retaliatory pay cut no later than November 17, 1982. She filed her charge with the EEOC on August 24, 1983 —280 days later. Though it is unclear whether EEOC in fact referred the charges to the PHRC at that time, as its regulations would have required, 29 C.F.R. § 1601.13 (1985), we will assume that this was done. Even so, the charge could not be deemed filed with the EEOC until 60 days later, and therefore was not filed within the 300-day limitation period. Seredinski contends that the EEOC has, by regulation, essentially overruled the Mohasco “240-day rule”. The regulation provides that charges arising in jurisdictions having a [state deferral agency] but which charges are apparently untimely under the applicable state or local statute of limitations are filed with the Commission upon receipt. Such charges are timely filed with the Commission within 300 days from the date of the alleged violation. Copies of all such charges will be forwarded to the appropriate [deferral agency]. 29 C.F.R. § 1601.13(a)(3) (1985). Seredinski argues that regardless of when proceedings begin before the state agency, a charge is timely filed as long as it is received by the EEOC within 300 days. This reading of the regulation is overly expansive and without merit. As the district court noted, the EEOC does not have the power to overrule by regulation a Supreme Court decision or to alter the statutory scheme. Nor do we think that it is necessary to give this regulation an interpretation that would require its invalidation. This court noted in Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 752 n. 4 (3d Cir.), cert. denied, 464 U.S. 852, 104 S.Ct. 164, 78 L.Ed.2d 150 (1983), that the regulation was promulgated in response to Oscar Mayer Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), where the Supreme Court held that although a complainant must file before the state" }, { "docid": "18577078", "title": "", "text": "taken out of production and placed in a position in the Customer Service Department. Seredinski was then over forty years of age and was the only female supervisor responsible for more than twenty employees. She was also the oldest supervisor in the company. Alleging age and sex discrimination, she filed a claim with the Pennsylvania Human Relations Commission (“PHRC”) on March 16, 1982. The charge was later deferred to the Equal Employment Opportunity Commission (“EEOC”). The EEOC, however, never had the opportunity to act upon the charge, as the PHRC worked out a settlement agreement that was signed by the parties on April 20,1982. As a result, both the EEOC and PHRC closed their administrative files on the charge. On November 17, 1982, Seredinski was informed that her salary would be reduced in three increments to bring it within the range of salaries offered to Customer Service Personnel. Her salary was reduced from $12.63 to $7.75 per hour between November 29, 1982 and April 4, 1983. On August 24, 1983, she filed a charge with the EEOC alleging that her salary was reduced in retaliation for the charge of discrimination she previously filed with the PHRC. It does not appear that Seredinski filed this second charge with the PHRC, and it is unclear whether EEOC deferred the charge to the state agency. After an EEOC investigation, she was given notice of her right to sue. App. at 33. Seredinski filed suit in the district court on February 17,1984. She alleged that her initial demotion was discriminatory and that the subsequent wage reduction was retaliatory, in violation of Title VII, ADEA, and the Pennsylvania Human Rights Act. She included a claim for breach of an implied covenant of good faith and fair dealing as well as for intentional infliction of emotional distress. The final count of the complaint averred that the salary reduction was a breach of the settlement agreement which disposed of her initial charge. In response to the complaint, Clifton filed a motion to dismiss, arguing that the Title VII and ADEA claims were time barred and requesting the" }, { "docid": "18577089", "title": "", "text": "of the alleged violation. Copies of all such charges will be forwarded to the appropriate [deferral agency]. 29 C.F.R. § 1601.13(a)(3) (1985). Seredinski argues that regardless of when proceedings begin before the state agency, a charge is timely filed as long as it is received by the EEOC within 300 days. This reading of the regulation is overly expansive and without merit. As the district court noted, the EEOC does not have the power to overrule by regulation a Supreme Court decision or to alter the statutory scheme. Nor do we think that it is necessary to give this regulation an interpretation that would require its invalidation. This court noted in Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 752 n. 4 (3d Cir.), cert. denied, 464 U.S. 852, 104 S.Ct. 164, 78 L.Ed.2d 150 (1983), that the regulation was promulgated in response to Oscar Mayer Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), where the Supreme Court held that although a complainant must file before the state agency in order to sue in federal court, she need not do so within the applicable state statute of limitations. 441 U.S. at 761-62, 99 S.Ct. at 2074. We stated in Kocian: The new regulation indicates that the EEOC will now forward charges to state agencies, even though untimely, to allow the state agencies to consider the charges if they so desire. Consistent with Oscar Mayer, federal claimants will be entitled to the 300 day period for filing with the EEOC, even if the state filing is untimely. 707 F.2d at 752 n. 4. The district court correctly interpreted this EEOC regulation to be a codification of Oscar Mayer, rather than an attempted overruling of Mohasco or redrafting of Title VII. As such, it does not even purport to disturb the 240-day rule or change the result in this case. Finally, Seredinski contends that under a 1982 Worksharing Agreement between EEOC and PHRC, PHRC has waived its exclusive 60-day right to resolve Title VII charges initially processed by the EEOC. (Such waiver is authorized by" }, { "docid": "22948791", "title": "", "text": "have been commenced under the State or local law, unless such proceedings have been earlier terminated____” 42 U.S.C. § 2000e-5(c). The purpose of the sixty-day deferral period is to provide the states with a limited opportunity to resolve discrimination claims locally before a complainant may seek federal relief. Cf. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 761, 99 S.Ct. 2066, 2074, 60 L.Ed.2d 609 (1979) (construing the Age Discrimination in Employment Act (the “ADEA”)). The extended period for the filing of EEOC claims by deferral state complainants was intended to prevent the “forfeiture of a complainant’s federal rights while participating in state proceedings.” Mohasco Corp. v. Silver, 447 U.S. 807, 821, 100 S.Ct. 2486, 2494, 65 L.Ed.2d 532 (1980) (footnote omitted). It is undisputed that Pennsylvania is a deferral state within the meaning of 42 U.S.C. § 2000e-5. Thus, the 300-day filing period applies if Howze had initiated proceedings with the relevant state agency, the Pennsylvania Human Relations Commission (the “PHRC”). Howze admits that she did not file a charge with the PHRC. Nevertheless, she contends that she is entitled to the longer filing period because the EEOC referred her charge to the PHRC. In Love v. Pullman, supra, the Supreme Court held that an EEOC referral to the state agency satisfies the requirement that state proceedings be initiated. A state filing by the EEOC entitles the complainant to the 300 day filing limit even if, as here, the state filing is untimely under state law. Mohasco, 447 U.S. at 815-16, 100 S.Ct. at 2491-92; Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 751 (3d Cir.1982), cert. denied, - U.S.-, 104 S.Ct. 164, 78 L.Ed.2d 150 (1983). J & L argues that, although Howze contended in the district court that the EEOC “notified” a local agency of her charge, she provided no supporting evidence of this contention. It quotes the district court’s observation that “a statement in a brief is not factual evidence for purposes of a motion for summary judgment,” and concludes that Howze cannot survive summary judgment on this issue. The district court did" }, { "docid": "543169", "title": "", "text": "made by defendant’s agent are not sufficient to support the conclusion that equitable tolling applies here. The contention that the plaintiff was prevented in “some extraordinary way” from timely assertion of her rights seems to depend on plaintiff’s claim that she received erroneous guidance from the EEOC itself. She asserts that she called the EEOC in September of 1981 to find out how to proceed, and they told her that they would send her a brochure, which they did. The brochure she received said under the section entitled “Filing a Charge”: “[Yjou must' file an employment discrimination charge within 180 days of the alleged discriminatory act. Where there is a State or Local Fair Employment Practice Agency in your area, you have up to 240 days, and in some cases you may have up to 300 days to file your charge with EEOC, but you should check with the Commission.” It cannot be asserted that this language in the brochure was a model of clarity, but it is not, on its face, a total misrepresentation. The first injunction was to file within 180 days. The second was, if you are in a state with an appropriate agency, you have up to 240 days. Further, in some cases, you may have up to 300 days, but check with the Commission. Plaintiff asserts that because she was puzzled by the information in the brochure, she did call somebody at the Commission and was told that she had up to 300 days in which to file and that, ultimately, when she did file on the 299th day, her filing was accepted. Plaintiff argues that her late filing was due to her reasonable reliance upon these statements and actions by the EEOC. The Third Circuit has noted, when faced with similar arguments, “That equitable tolling is particularly appropriate in cases involving ‘lay persons unfamiliar with the complexities of administrative procedures.’ We have distinguished those cases, however, from cases such as this one involving Title VII litigants who are represented by counsel.” Kocian, 707 F.2d at 755. In the present action, if plaintiff had shown" }, { "docid": "4606315", "title": "", "text": "three reasons for allowing equitable tolling. First, it is allowed where the plaintiff actively pursues his judicial remedies but files a defective pleading during the statutory period, such as filing in the wrong forum. Irwin v. Veterans Admin., 498 U.S. 89, 94-97, 111 S.Ct. 453, 457-58, 112 L.Ed.2d 435 (1990); Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 753 (3rd Cir.1983), cert, denied, 464 U.S. 852, 104 S.Ct. 164, 78 L.Ed.2d 150 (1983). Second, it is allowed where the deadline for filing has passed due to the plaintiffs reliance on his adversary’s misconduct or misrepresentation. Invin, 498 U.S. at 96-97, 111 S.Ct. at 458; Kocian, 707 F.2d at 753. Finally, it is allowed where the plaintiff has been prevented from asserting his rights in some “extraordinary way.” Kocian, 707 F.2d at 753. Courts generally disfavor equitable tolling where the plaintiff missed the deadline because of a lack of due diligence. Invin, 498 U.S. at 96-97, 111 S.Ct. at 458 (holding that where plaintiff filed Title VII complaint with district court late because his attorney was out of town when the E.E.O.C.’s right to sue letter was delivered to his office was not an adequate reason to justify equitable tolling). In this case, plaintiff argues that she filed her complaint with EEOC on October 6, 1992, which was clearly within the 180 day deadline. She alleges in her complaint that her claim with PHRC was cross-filed at the same time that she filed her complaint with EEOC. Complaint, para. 59. Without reviewing any of the documents referred to in plaintiffs and defendants’ briefs, it is apparent from their briefs that EEOC did not submit plaintiffs complaint to PHRC pursuant to the worksharing agreement, and that she ended up sending a complaint to PHRC directly on January 7, 1993. However, given that we are to construe the above allegations in the most favorable light to plaintiff for purposes of the motion to dismiss, defendants have failed to prove that plaintiffs claim was filed untimely and must be dismissed. See Lukus v. Westinghouse Elec. Corp., 276 Pa.Super. 232, 272, 419 A.2d" }, { "docid": "23533011", "title": "", "text": "September 4, 1980, the 201st day, with a corrected charge for Ms. Kocian’s signature. Ms. Kocian mailed the signed charge back to him on September 8, 1980, the 205th day. The EEOC did not receive the charge until October 3,1980, the 230th day. We first note that Ms. Kocian points to no EEOC conduct before the EEOC’s August 15 letter that could have misled her. The crux of the equitable tolling argument thus becomes whether the language of the letter of August 15 misled Ms. Kocian to delay further the filing of her formal charge. All EEOC conduct subsequent to the August 15 letter could have lulled her into believing that her charge was timely but could not have caused her late filing. We do not read the EEOC’s August 15 letter as providing justification for Ms. Kocian’s delay. Ms. Kocian points to only one sentence in that letter as being misleading —“Because a charge must be filed within the time limitation imposed by law, I urge you to [review, sign, and return the charge] as soon as possible.” App. at 60a. That sentence contained no false statement about the applicable statute of limitations. It merely advised Ms. Kocian to proceed expeditiously. It did not give her any reason to believe that the EEOC considered the enclosed charge to be formally filed and that she was thus free to make corrections without endangering the timeliness of her charge. The letter referred to her charge as a “potential charge” and noted that “for the Commission to proceed further,” she ■must return the charge with her signature. Ms. Kocian s arguments would be more appealing if she had been an inexperienced litigant proceeding pro se. We have noted that equitable tolling is particularly appropriate in cases involving “lay persons unfamiliar with the complexities of the administrative procedures.” Hart, 598 F.2d at 832; see Bronze Shields, 667 F.2d at 1085. We have distinguished those cases, however, from cases such as this one involving Title VII litigants who are represented by counsel. Id.; see also Perez v. Dana Corp., 545 F.Supp. 950, 953 (E.D.Pa.1982)" }, { "docid": "7397529", "title": "", "text": "waived its right to the period of exclusive processing with respect to that document, that document shall be deferred to the appropriate [state agency] ... 29 C.F.R. § 1601.13(a)(4)(i) (emphasis added). EEOC regulations further provide that in an ADEA case the EEOC “may refer all charges to any appropriate State agency” and that Pennsylvania is a state to which ADEA charges may be referred. Id. § 1626.9. Accordingly, we think that for purposes of the filing issue we should regard the EEOC filing as a Pennsylvania filing. Thus, we adhere to our holding in Davis v. Calgon Corp., 627 F.2d 674, 677 (3d Cir.1980) (per curiam), cert. denied, 449 U.S. 1101, 101 S.Ct. 897, 66 L.Ed.2d 827 (1981), in which in an ADEA case we held that “a plaintiff in a deferral state [such as Pennsylvania] is entitled to the extended period [of 300 days] provided by § 626(d)(2) regardless of whether he has filed a state administrative complaint within 180 days after the alleged discrimination occurred.” Id. (emphasis added). In Davis the plaintiff filed state and EEOC charges between 180 and 300 days after the alleged unlawful practice but we relied solely on the EEOC charges in concluding the filing was timely, thus implying that the state filing was not material on that issue. Id. at 677. We are aware of Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 752 (3d Cir.1983), a Title YII case. In Kocian we held that the 300-day limitations period is available to a litigant in a deferral state only when the EEOC or the litigant has instituted state or local proceedings. But Kocian was decided prior to the adoption of 29 C.F.R. § 1601.13(a)(4) providing for deferral of an EEOC complaint to the state agency and in any event is not binding on this in banc court. Furthermore, in Callowhill v. Allen-Sherman-Hoff Co., 832 F.2d 269 (3d Cir.1987), we indicated in an ADEA case that “[i]n a state such as Pennsylvania which has an agency performing functions similar to those of the EEOC, the time for filing is extended to 300" }, { "docid": "23533017", "title": "", "text": "Ms. Kocian’s charge was filed with the EEOC. . In response to Getty’s motion for summary judgment, Ms. Kocian submitted the affidavit of the EEOC director in which he stated that the EEOC had complied with all its regulations in not deferring Ms. Kocian’s charge. Because Ms. Kocian argued in the district court that the EEOC complied with its deferral regulations, we will not now entertain any argument that she might be making to the contrary. Cf. Singleton v. Wulff, 428 U.S. 106, 119-21, 96 S.Ct. 2868, 2876-2877, 49 L.Ed.2d 826 (1976) (ordinarily inappropriate for appellate courts to consider arguments that were not raised below); Newark Morning Ledger Co. v. United States, 539 F.2d 929, 932 (3d Cir.1976) (same). . Sharpe v. Philadelphia Housing Auth., 693 F.2d 24 (3d Cir.1982), arising under the parallel limitations provisions of the ADEA, is not to the contrary. In that case there was no indication that the plaintiff had filed a charge with the Pennsylvania deferral agency. The Sharpe court nonetheless concluded that the 300-day limitations period applied because it “assume[d] that the Pennsylvania Human Rights Commission did indeed receive the plaintiffs administrative charge pursuant to the EEOC regulations.” Id. at 26 n. 3. The court explained that it was undisputed on appeal that EEOC regulations required deferral by the EEOC to the appropriate state agency. Id. The instant case presents quite a different scenario. The affidavit which Ms. Kocian herself submitted to the district court makes it clear that EEOC regulations at the time did not require it to defer Ms. Kocian’s charge. In this case the failure to defer to the state agency is not attributable to the EEOC’s failure to follow its own regulations. Thus we cannot hold that the 300-day limitations period applies here because we cannot “assume,” as the Sharpe court could, that the EEOC made the appropriate deferral according to its regulations. . Ms. Kocian explains that after her constructive discharge on February 16, 1980, she was forced to search for a new job while caring for her minor child and her seriously ill mother. She also states" } ]

[ { "docid": "11561456", "title": "", "text": "release caused the incur-rence of response costs. United States v. Ward, 618 F.Supp. 884, 893-94 (E.D.N.C.1985). Electron advances several arguments in support of its summary judgment motion. The court will focus on just one of the arguments as it is dispos-itive of this motion. Electron asserts that Greene has presented insufficient evidence to establish that Electron is a responsible party under § 9607(a)(3) by arranging for the disposal of a hazardous substance. First, Electron argues that its sale of the equipment was legal under the applicable laws. Electron purchased the equipment for its own use prior to the pertinent date. Electron also presents facts which establish that the equipment was totally enclosed and non-leaking when it was sold. See supra, at 985. Greene attempts to rebut Electron’s facts in several interesting but unavailing ways. First, Greene attempts to denigrate the equipment by characterizing it as a “PCB leaking transformer, which turned out to be no more than fully depreciated scrap loaded with hazardous substance. ...” In addition, Greene’s general manager Earl Greene stated that he “did not know at the time of the sale that this machinery was leaking or that it was in such a dilapidated condition that leakage was imminent.” Neither Greene’s characterization of the equipment nor its general manager’s statement as to what he did not know are sufficient to rebut the undisputed facts which establish that the equipment was non-leaking, totally enclosed, and usable when it was sold. Finally, Greene identifies the following facts that, when considered together, purportedly compel the inference that the equipment was leaking when it was sold. First, Electron did not use the equipment between 1974 and 1981. Second, the EPA required the inspection of such equipment for the first time in 1981. Third, Electron sold the equipment for $1,000 when the price of new equipment in 1981 would have been over $100,000. These facts offer little, if any, probative value on the question of Electron’s motivation for making the sale. Electron has introduced evidence stating that it did not use this equipment because it was not compatible with its other equipment." } ]

[ { "docid": "11761560", "title": "", "text": "did not exercise due care or take the precautions necessary to permit it to assert the third party defense. CERCLA requires that the party asserting a third party defense show that it “exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances” and that it “took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions.” 42 U.S.C. § 9607(b)(3); see Lincoln Properties, 823 F.Supp. at 1543. Courts have interpreted this requirement by looking to the legislative history of CERCLA, which provides that the party asserting a third party defense “‘must demonstrate that he took all precautions with respect to the particular waste that a similarly situated reasonable and prudent person would have taken in light of all relevant facts and circumstances.’” State of New York v. Lashins Arcade Co., 91 F.3d 353, 361 (2nd Cir.1996) (quoting H.R.Rep. No. 1016, 96th Cong., 2d Sess., pt. 1, at 34 (1984)). This includes “those steps necessary to protect the public from a health or environmental threat.” Id. (citations and internal quotations omitted). Rhone-Poulenc argues that the United States knew Iron Mountain Mine was being mined extensively throughout the relevant period and suggests that the United States should have foreseen the creation of AMD and taken appropriate precautions. According to Rhóne-Poulenc, the appropriate precautions would have been to better monitor and regulate the mining at Iron Mountain Mine. However, throughout this period the United States was the title holder to millions of acres of Western land, much of it occupied and mined by prospectors and mining companies. Moreover, under the provisions of the Mining Act, states and local mining districts, not the United States, regulated mining operations on those lands. Given the extent of the United States’ holdings and its lack of actual control over mining operations, it would be unreasonable to expect the United States to have discovered that AMD was being released from the 1.1 and .18 acre parcels on Iron" }, { "docid": "15091880", "title": "", "text": "hazardous substance and the damages resulting therefrom were caused solely by ... (1) an act of God; (2) an act of war; and (3) an act or omission of a third party other than an employee or agent of the defendant or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant ..., if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foresee-ably result from such acts or omissions; or (4) any combination of the foregoing paragraphs.” 42 U.S.C. § 9607(b). Liability is strict, without regard to fault, and is imposed jointly and severally unless a defendant can demonstrate that the harm is “divisible.” See Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 870-71 (9th Cir.2001) (“CERCLA ‘generally imposes strict liability on owners and operators of facilities at which hazardous substances were disposed.’ ... To achieve that end, CERCLA ‘authorizes private parties to institute civil actions to recover the costs involved in the cleanup of hazardous wastes from those responsible for their creation.’ ... Once liability is established, the defendant may avoid joint and several liability by establishing that it caused only a divisible portion of the harm — for example, it contributed only a specific part of the hazardous substances that spilled”); Centerior Service Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 348 (6th Cir.1998) (“Liability for cost recovery actions brought against [potentially responsible parties ‘PRPs’] under § 107(a) is strict.... Liability is also generally joint and several on any defendant PRP regardless of fault.... Only if a defendant can affirmatively demonstrate that the harm is divisible, will damages from a cost recovery action brought pursuant to § 107(a) be apportioned according to fault”). Given the limited nature of the defenses available, DTSC" }, { "docid": "23544326", "title": "", "text": "section 107(a) is subject only to the three defenses, enumerated in section 107(b), which the defendant bears the burden of proving by a preponderance of the evidence: (1) an act of God; (2) an act of war; (3) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant, ... if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned ... and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions____ 42 U.S.C. § 9607(b) (1982). In order to prevail on these defenses, a defendant must prove that one or a combination of these events was the sole cause of the release or threat of release of hazardous substances and the damage resulting therefrom. 42 U.S.C. § 9607(b) (1982). Aside from these defenses, CERCLA imposes strict liability. United States v. Northeastern Pharmaceutical and Chemical Co., Inc. (NEPACCO), 579 F.Supp. 823, 843-44 (W.D.Mo.1984); United States v. Price, 577 F.Supp. 1103, 1113 (D.N.J.1983); United States v. Chem-Dyne Corp., 572 F.Supp. 802, 805 (S.D.Ohio 1983); City of Philadelphia v. Stepan Chemical Co., 544 F.Supp. 1135, 1148 (E.D.Pa.1982). Section 107(a) also provides for joint and several liability. 42 U.S.C. § 9607 (1982). See, e.g., NEPACCO, 579 F.Supp. at 844-45. III. MOTIONS BY PLAINTIFF, THE UNITED STATES OF AMERICA, AND PLAINTIFF-INTERVENOR, THE STATE OF NORTH CAROLINA, FOR PARTIAL SUMMARY JUDGMENT AGAINST THE WARD DEFENDANTS Plaintiff, the United States of America, and plaintiff-intervenor, the State of North Carolina, both move for partial summary judgment on their claims against the Ward defendants. Specifically, they request the court to enter judgment against the Ward defendants on the issue of liability under CERCLA, and hold that there are no defenses available to these defendants. If the motions are granted, it would leave for trial between these parties only an issue of damages." }, { "docid": "11212317", "title": "", "text": "of the four categories of responsible parties), it is enough that response costs resulted from ‘a’ release or threatened release — not necessarily the defendant’s release or threatened release.” United States v. Hercules, Inc., 247 F.3d 706, 716 (8th Cir.2001) (citing 42 U.S.C. § 9607(a)(4)); accord Town of Munster v. Sherwin-Williams Co., 27 F.3d 1268, 1273 n. 3 (7th Cir.1994) (collecting cases). Beyond his misguided causation argument, Defendant does not dispute that the government spent $1.5 million to clean up the Crescent Plating facility. Thus, the government has established that it incurred costs in response to a threatened release. 5. Defenses Defendant also attempts to escape liability by relying on several defenses. Two of those defenses-that the releases were in the workplace and that Defendant is not an owner because he was protecting a security interest — have already been addressed. The remaining defenses fare no better, as explained below. a. Third-Party Defense First, Defendant attempts to rely on CERCLA’s third-party defense. 42 U.S.C. § 9607(b)(3). The defense applies if a party shows, by a preponderance of the evidence, that “the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by ... an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant,” provided that (a) the defendant “took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions,” and (b) the defendant “exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances.” Id. In support of this argument Defendant argues that his contractual relationship with Crescent Plating did not relate to hazardous substances, it did not give him any control over Crescent Plating’s activities, and the lease document itself specifically stated that Crescent Plating would use the equipment lawfully. (Def's Memo in Opposition, Dkt." }, { "docid": "17030264", "title": "", "text": "at 1233. Indeed, “courts have not hesitated to look beyond defendants’ characterizations to determine whether a transaction in fact involves an arrangement for the disposal of a hazardous substance.” United States v. Aceto Agr. Chemicals Corp., 872 F.2d 1373, 1381 (8th Cir.1989); see also TMG Enterprises, 979 F.Supp. at 1123 (“It is the nature of the transaction, not the parties’ characterization that determines whether the transaction was a sale of a useful product or an arrangement for disposal.”). In the present case, Burns’ uncontroverted actions demonstrate that it necessarily intended to enter into a transaction that included an arrangement for the disposal of a hazardous substance. Indeed, it cites absolutely no facts that would support a contrary inference. Finally, for purposes of establishing CERCLA liability, Bums’ belief that its batteries were being shipped to Indiana is irrelevant, as is its belief that USLC was operating in an environmentally responsible manner. The Sixth Circuit has recognized that “a party can be responsible for ‘arranging for’ disposal, even when it has no control over the process leading to the release of the substances.” Cello-Foil, 100 F.3d at 1232. Moreover, “[a] party cannot escape liability by claiming that it had no intent to have the waste disposed of in a particular manner or at a particular site.” Id. Once it has been determined that Burns intended to arrange for the disposal of a hazardous substance by selling lead and contaminated battery casings, “strict liability takes effect,” and it is responsible for any resulting damages. Id.; see also Aceto, 872 F.2d at 1381 (recognizing that “[c]ourts have also held defendants ‘arranged for’ disposal of wastes at a particular site even when defendants did not know the substances would be deposited at that site or in fact believed they would be deposited elsewhere”). As a result, the Court concludes that the Govern ment is entitled to summary judgment on the issue of Bums’ “arranger” liability under CERCLA. 5. Caldwell Iron & Metal With respect to Defendant Caldwell Iron & Metal, the Government argues as follows: Caldwell Iron & Metal is listed on the United Scrap" }, { "docid": "4011276", "title": "", "text": "at 626, 626 n. 9 (“Quinn also asserts it exercised due care in its dealings_”) (emphasis added). But cf. id. at 627-28 (addressing Mottolo’s distinct equitable defenses, including estoppel, waiver, and release). At summary judgment on the issue of liability, unproffered affirmative defenses to liability normally are deemed abandoned. See, e.g., United Mine Workers 1974 Pension v. Pittston Co., 984 F.2d 469, 478 (D.C.Cir.), cert. denied, — U.S. -, 113 S.Ct. 3039, 125 L.Ed.2d 726 (1993); Pantry Inc. v. Stop-n-Go Foods, Inc., 796 F.Supp. 1164, 1167 (S.D.Ind.1992). Mottolo’s failure to preserve these affirmative defenses was neither technical in nature nor inadvertent. Mottolo was not entitled to rely on codefendant Quinn’s “third party” defense, because such a defense is personal to the defendant who raises it. But even if the rule were otherwise, Mottolo could not claim the benefit of a eodefendant’s proffer that a third party (EPA) was the sole cause of the contamination, without first establishing that “(a) [Mottolo himself] exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) [.Mottolo himself] took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions.” 42 U.S.C. § 9607(b)(3)(a)-(b) (emphasis added). At the very least, therefore, Mottolo would have been required to present developed argumentation and competent evidence that he exercised “due care” as an “owner,” “operator,” and “transporter,” see Pahlavi v. Palandjian, 809 F.2d 938, 943 (1st Cir.1987); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986), factual issues wholly distinct from eodefendant Quinn’s due care as a “generator.” Even as late as December 1992, however, the district court re-examined Quinn’s third-party defense but observed that Mottolo had yet to “articulate[ ] [a ‘due care’ argument] on his own behalf.\" Mottolo, Nos. 83-547-D, 84-90-D, slip op. at 10 n. 6 (emphasis added). Finally, and most importantly, there is no suggestion or indication that Mottolo was unable to assert these" }, { "docid": "10496429", "title": "", "text": "due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions;” 42 U.S.C. § 9607(b)(3). Roche contends that the government has not alleged a lack of due care in its complaint and therefore this court must assume that the requirements of § 107(b)(3) have been satisfied. The above-cited section, however, constitutes an affirmative defense. As a result, the burden of proof is on the party raising the defense, in this instance, Roche. In fact, the language of the subsection specifically states that the defendant must establish “by a preponderance of the evidence” that due care was exercised. 42 U.S.C. § 9607(b)(3). Obviously, at this point in the litigation, Roche is not able to prove that it exercised due care, in part because the company has not been presented with the full range of evidence implicating it in the dumping scheme (if such evidence does, in fact, exist). Since Roche has the burden of proving the “due care defense,” and has not yet satisfied that burden, its motion for summary judgment must be denied. In light of the reasons set forth in this opinion this court concludes that Roche can be held liable under § 106(a) of CERCLA, as a potential past, nonnegligent, offsite generator of hazardous waste deposited at Price’s Landfill.12a Factual Grounds for Summary Judgment Roche also moves for summary judgment based on the summary of evidence compiled by the government and submitted to the court. The summary was supplied by the government and filed with this court on November 19, 1982, and it outlined all the relevant evidence which the government had against each defendant at that point in time. Roche contends that the government has taken ample discovery and has still failed to produce any relevant evidence implicating the company. The government, on the other hand, argues that it has conducted only minimal discovery. Moreover," }, { "docid": "13042824", "title": "", "text": "contractual relationship, existing directly or indirectly, with [the party asserting the defense] ... 42 U.S.C. § 9607(b)(3). In addition to the “no contractual relationship” and “sole cause” requirements, the party asserting the defense must establish that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances (the “due care requirement”), and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result for such acts or omissions (the “precautionary requirement”). 42 U.S.C. § 9607(b)(3)(a) and (b). Thus, a party who demonstrates that a third party is solely responsible for the release must still prove that he exercised “due care” and took all appropriate “precautions” to prevent release of the hazardous substance(s). The due care requirement has been defined to require that a the person asserting the third party defense to demonstrate that he took necessary steps to prevent foreseeable adverse consequences arising from the contamination. Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 326 & n. 3 (7th Cir.1994) (due care not established when PRP took no affirmative measures to clean site); United States v. DiBiase Salem Realty Trust, Civ.A. No. 91-11028-MA, 1993 WL 729662 (D.Mass. Nov. 19, 1993) (CERCLA’s affirmative defenses not available when defendant took no steps to prevent harm from hazardous substances). The precautionary requirement is satisfied by taking precautionary steps against the foreseeable actions of third parties responsible for the hazardous substances in question. United States v. Monsanto Co., 858 F.2d 160, 169 (4th Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989). The second defense asserted by the plaintiff, the “innocent purchaser” or “innocent landowner” defense, is actually an incident of the third party defense. DiBiase, 1993 WL 729662, at *6. Because land deeds and other instruments transferring possession are normally a sufficient “contractual relationship” to preclude assertion of the third party defense, see 42 U.S.C. § 9601(35), Congress created an exception to the “no contractual relationship” requirement" }, { "docid": "11212318", "title": "", "text": "preponderance of the evidence, that “the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by ... an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant,” provided that (a) the defendant “took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions,” and (b) the defendant “exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances.” Id. In support of this argument Defendant argues that his contractual relationship with Crescent Plating did not relate to hazardous substances, it did not give him any control over Crescent Plating’s activities, and the lease document itself specifically stated that Crescent Plating would use the equipment lawfully. (Def's Memo in Opposition, Dkt. 110, at 12-13.) The third-party defense is not available to Defendant because, first, his contractual relationship with Crescent Plating was connected to the release of a hazardous substance. Defendant’s lease agreement with Crescent Plating states that the equipment being leased will be used “in the performance of accomplishing metal finishing work in an authorized and lawful fashion.” (Pl’s 56.1(a)(3), Dkt. 87, Ex. 26 ¶ 2.) The first part of this statement — “in the performance of accomplishing metal finishing work” — leaves no doubt that the contract was connected to the release; the release was caused by the plating process, an object of the contract. See Westwood Pharmaceuticals, Inc. v. Nat’l Fuel Gas Distribution Corp., 964 F.2d 85, 91-92 (2d Cir.1992); American Nat’l Bank & Trust Co. v. Harcros Chemicals, Inc., 997 F.Supp. 994, 1001 (N.D.Ill.1998). Some courts have interpreted “in connection with a contractual relationship” such that the third-party defense does not apply when there is any contractual relationship between the defendant and the third party that caused the release. E.g., United States v." }, { "docid": "16530132", "title": "", "text": "Costs. CERCLA § 107(a)(4), 42 U.S.C. § 9607(a)(4). To establish liability, a plaintiff must demonstrate that (1) there has been a “release” or a “substantial threat of release” of a “hazardous substance” ; (2) from a “facility”; (3) which caused the plaintiff to incur Response Costs; and (4) each of the defendants fits within one of the categories of potentially responsible parties (“PRPs”) identified under CERCLA § 107(a), 42 U.S.C. § 9607(a). A & N Cleaners, 788 F.Supp. at 1322. Among the four classes of PRPs under CERCLA § 107(a) are the current “owner and operator” of the facility. Absent a showing by a preponderance of the evidence that one of the affirmative defenses contained in CERCLA § 107(b), 42 U.S.C. § 9607(b), has been satisfied, PRPs’ potential liability for Response Costs is strict. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192 (2d Cir.1992); New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir.1985). Where the environmental harm is indivisible, liability is also joint and several. B.F. Goodrich, 958 F.2d at 1197. Under the “Third-Party Defense” set forth in CERCLA § 107(b)(3), a defendant is not liable if it establishes that the release or threatened release was caused solely by: (3) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant ... if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances [the “Due Care Requirement”], and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result for such acts or omissions [the “Precautionary Requirement”]. The second defense relevant to this case, the “Innocent Landowner Defense,” is actually a special ease of the Third-Party Defense. In 1986 Congress created an exception to the “no contractual relationship” requirement of the Third-Party" }, { "docid": "10282996", "title": "", "text": "could not be placed elsewhere. But even where a state government acquired land by eminent domain in order to build a freeway, at least one court held that the purchase was made voluntarily and that section 106(20)(D) did not apply. See Transportation Leasing Co. v. State of California (Cal-Trans), 861 F.Supp. 931 (C.D.Cal.1993). B. CERCLA’s third party defense does not relieve the City from liability. The City argues that CERCLA § 107(b)(3) shields it from liability because the hazardous substances at issue were released solely by Occidental. Section 107(b)(3) provides: (b) There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by— 3) an act or omission of a third party other than ... one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant ... if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substances, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions____ 42 U.S.C. § 9607(b)(3). In Supplemental Order No. 20, this court held that “OCC’s direct or indirect contractual relationships with both the Board and the City preclude the company’s assertion of a viable third-party defense____” United States v. Hooker Chemicals & Plastics Corp., 680 F.Supp. 546, 558 (W.D.N.Y.1988). The court held that a party “cannot claim that it is entitled to assert the third-party defense if it has a direct or indirect contractual relationship with ... the third-part[y] it claims [is] ‘solely responsible’ for the release or threatened release of hazardous chemicals from a site.” Id. This court concluded that an indirect contractual relationship arose when Hooker “deeded the Love Canal property to the Board" }, { "docid": "23689806", "title": "", "text": "the Middle District of Florida approved a settlement of the federal government’s claims against the corporate parents and affiliates of IPC, including CIOC. Subsequently, the United States dismissed its action in this Court against CIOC, Charter Oil Company, and The Charter Company. . In the appeal taken from the district court’s judgment in NEPACCO, the Eighth Circuit expressly reserved the issue of whether CERCLA imposes strict liability. Nevertheless, the Eighth Circuit noted that most courts had imposed strict liability. NEPACCO, 810 F.2d at 732 n. 3. . Only the third defense, what may be called the \"third party defense\", is arguably applicable; however, this defense has important qualifications which limit its reach. First, the defense applies only to acts or omissions by a third party \"other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual rela tionship, existing directly or indirectly, with the defendant.\" 42 U.S.C. § 9607(b)(3). Here, it appears that the defendant’s contractual relationships place them beyond the scope of the defense. Second, a defendant asserting the defense must establish that all due care was exercised and precautions against foreseeable acts or omissions taken in handling the hazardous substance. Thus, willful ignorance of how a third party disposes of a hazardous substance would preclude use of the defense. See Shore Realty Corp., 759 F.2d at 1048-49 (landlord could have reasonably foreseen tenant’s dumping activities). . Under Section 101(9) of CERCLA, (9) \"facility\" means (A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel. . Section 101(14) of CERCLA defines hazardous substances by incorporating the definitions used by other federal statutes, including RCRA. Pursuant to Section 3001 of RCRA, the EPA promulgated regulatory criteria for" }, { "docid": "13042823", "title": "", "text": "language of § 107 explicitly limits the defenses to liability under CERCLA to those enumerated in the statute, none of which mention or even imply that equitable defenses are available.” Town of Munster, Ind. v. Sherwin-Williams, 27 F.3d 1268, 1273 (7th Cir.1994). See also United States v. DiBiase Salem Realty Trust, Civ.A. No. 91-11028-MA, 1993 WL 729662, at *6 (D.Mass. Nov. 19, 1993) (“CERCLA provides only limited, specifically enumerated defenses to liability.”). Therefore, the Court need only address those defenses set forth in the CERCLA Two statutory defenses are raised by the plaintiff to the counterclaims asserted against him: the so-called “third party” and “innocent landowner” defenses. The Court concludes that neither defense is available to the plaintiff. Under the CERCLA’s “third party” defense, an otherwise liable party can avoid liability by establishing that the release or threatened release was caused solely by: an act or omission of a third party other than an employee or agent of the [party asserting the defense], or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with [the party asserting the defense] ... 42 U.S.C. § 9607(b)(3). In addition to the “no contractual relationship” and “sole cause” requirements, the party asserting the defense must establish that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances (the “due care requirement”), and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result for such acts or omissions (the “precautionary requirement”). 42 U.S.C. § 9607(b)(3)(a) and (b). Thus, a party who demonstrates that a third party is solely responsible for the release must still prove that he exercised “due care” and took all appropriate “precautions” to prevent release of the hazardous substance(s). The due care requirement has been defined to require that a the person asserting the third party defense to demonstrate that he took necessary steps to prevent foreseeable adverse consequences arising from the contamination. Kerr-McGee" }, { "docid": "4068662", "title": "", "text": "the government’s assertion that they are owners of a facility. Yet in their answer to the complaint, they admitted that on December 12, 1969, they purchased all but a small portion of Parmoff’s interest in the Taylor site and that they have owned a portion of the site ever since. They further admitted that the land they bought from Parmoff was the parcel that Parmoff had previously leased to the City of Scranton for use as a refuse disposal area. As discussed below, the defendants’ argument is aimed, not at challenging the government’s prima facie case, but at establishing one of the three defenses set forth in section 107(b). C. Affirmative Defense to the Prima Facie Case Section 107(b) provides as follows: There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by— (1) an act of God; (2) an act of war; (3) an act of omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions; or (4) any combination of the foregoing paragraphs. The Empire defendants have raised the “third party” defense in paragraph 3, and under the facts of this case, must prove by a preponderance of the evidence that: 1. the release or threat of release of a hazardous" }, { "docid": "4402711", "title": "", "text": "burden, on an affirmative defense, of establishing that the release of hazardous substances were caused solely by others. Furthermore, Alcan must establish that it exercised due care with respect to the hazardous substance concerned, and that it took precautions against foreseeable acts or omissions of others. 42 U.S.C. § 9607(b)(3)(a) and (b). Alcan has not met, and cannot meet, its burden in establishing an affirmative defense pursuant to Section 107(b)(3). First, Alcan would have to argue that the third parties solely responsible for the release of a hazardous substances at the City landfills are exclusively other generators. One of the responsible third parties, however, is Russell Mahler and his waste disposal companies, with whom Alcan had a contractual relationship for the disposal of its waste. Thus, Alcan cannot establish that the release of hazardous substances at the City landfills was caused solely by the act or omission of a third party “other ... than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with” Alcan. 42 U.S.C. § 9607(b)(3). Nor has Alcan attempted to establish that it “exercised due care” with respect to the hazardous substances it left to Mahler’s disposal, 42 U.S.C. § 9607(b)(3)(a), or that it “took precautions against foreseeable acts or omissions” of Mahler and “the consequences that could foreseeably result from such acts or omissions,” 42 U.S.C. § 9607(b)(3)(b). Second, the statute requires Alcan to establish that “the release” of a hazardous substance at the City landfills “and the damages resulting therefrom were caused solely by ... a third party.” 42 U.S.C. § 9607(b)(3). Alcan cannot establish that “the release” was caused solely by third parties because, as we have determined, see supra at 189, Alcan’s hazardous substance-containing waste was deposited in the City landfills. As to whether “the damages resulting [from the release] were caused solely by” others, Alcan asserts that the substances in its waste are not harmful, and therefore could not have caused any damages when released, (1) because they are insoluble and (2) because they are present in concentrations “below ambient”. With regard to solubility," }, { "docid": "14288467", "title": "", "text": "defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foresee-ably result from such acts or omissions; or (4) any combination of the foregoing paragraphs. 42 U.S.C. § 9607. Based on this language, “[a] strong majority of courts have held that liability under § 107(a) of CERCLA is subject only to the defenses set out in § 107(b).” Marisol, 725 F.Supp. at 838. See also County Line Investment Co. v. Tinney, 933 F.2d 1508, 1518 n. 15 (10th Cir.1991); United States v. Aceto Agricultural Chemicals Corp., 872 F.2d 1373, 1378 (8th Cir.1989); United States v. Monsanto Co., 858 F.2d 160, 168 (4th Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989); United States v. Skipper, 781 F.Supp. 1106, 1110 (E.D.N.C.1991); United States v. Azrael, 765 F.Supp. 1239, 1242 (D.Md.1991); Kramer, 757 F.Supp. at 410; Kelley, 714 F.Supp. at 1445; United States v. Mottolo, 695 F.Supp. 615, 626 (D.N.H.1988); United States v. Hooker Chemicals & Plastics Corp., 680 F.Supp. 546, 557 (W.D.N.Y.1988); United States v. Stringfellow, 661 F.Supp. 1053, 1058 (C.D.Cal.1987); Violet v. Picillo, 648 F.Supp. 1283, 1293 (D.R.I.1986); United States v. Tyson, 1986 Westlaw 9250 at *10 (E.D.Pa. Aug. 22, 1986); United States v. Dickerson, 640 F.Supp. 448, 451 (D.Md.1986); United States v. Conservation Chemical Co., 619 F.Supp. 162, 204 (W.D.Mo.1985); State ex rel. Brown v. Georgeoff, 562 F.Supp. 1300, 1305 (N.D.Ohio 1983). These holdings are predicated on the fact that CERCLA imposes strict liability on parties responsible for contributing to the release of hazardous substances, see Aceto, 872 F.2d at 1377; Monsanto," }, { "docid": "5827147", "title": "", "text": "release at a particular disposal site. CERCLA only requires that the plaintiff prove by a preponderance of the evidence that the defendant deposited his hazardous waste at the site and that the hazardous substances contained in the defendant’s waste are also found at the site. See United States v. Wade, 577 F.Supp. at 1333; United States v. Conservation Chemical Co., 619 F.Supp. at 191; see also New York v. Shore Realty Corp., 759 F.2d at 1044 (refusing to read a causation requirement into section 107(a)). C. Defenses to Liability under CERCLA Section 107 1. Statutory Defenses CERCLA section 107(b) enumerates the only defenses to CERCLA liability provided within the statute itself. Only three statutory defenses are available to a defendant otherwise liable under CERCLA. Section 107(b) provides: There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by— (1) an act of God; (2) an act of war; (3) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions; or (4) any combination of the foregoing paragraphs. 42 U.S.C. § 9607(b) (1982). In essence, the affirmative defenses outlined in section 107(b) will allow a defendant to evade liability if the release and damage are caused solely by an act of God, or war, or by acts" }, { "docid": "12618675", "title": "", "text": "of that sale. a. Generator Liability as to BPB Third-party plaintiffs argue that BPB’s agreement with Sea-Port embodied an arrangement for the disposal or treatment of hazardous substances at the Sea-land site. BPB contends that this analysis fails because they did not control the decision to place the waste in the Sealand facility. Third-party plaintiffs have only established that Hildreth provided Hawkins with the names of potential raw coal suppliers. (Hildreth Aff. at ¶ 14). There is no evidence that Hildreth made the decision to dispose of hazardous substances or performed any role in deciding which suppliers would sell to Sea-Port or providing coal tar directly to Sea-Port. Third-party plaintiffs also assert that BPB should be held to generator liability as a formulator of hazardous wastes. In U.S. v. Aceto Agr. Chemicals Corp., 699 F.Supp. 1384 (S.D.Iowa 1988), aff'd in part, rev’d in part, 872 F.2d 1373 (8th Cir.1989), the Court denied defendants’ motions to dismiss where defendants processed pesticides at the Aidex facility and received the end product. The Court found that the “formulator [Aidex] is more of an independent contractor than a purchaser, because the manufacturer normally maintains ownership of the technical grade pesticide, the work in progress and the commercial grade pesticide even after possession passes to the formulator.” Aceto at 1387. See also United States v. Velsicol Chemical Corporation, 701 F.Supp. 140, 142 (W.D.Tenn.1987) (finding generator liability where defendants arranged for Arlington Blending to formulate and package products and defendant knew or should have known that there would be losses through spills or leaks and that wastes would be generated in the formulating process). Third-party plaintiffs argue that BPB should be held liable as a generator under the Aceto standard. The record establishes that BPB assisted in locating the raw material inputs for the Sealand operation and received the output at rates substantially lower than market prices. In addition, BPB was the only one who received the coal tar from the operation of the Sealand site. Third-party plaintiffs combine these facts to infer that the Sealand facility was operated by BPB for the benefit of BPB" }, { "docid": "17631691", "title": "", "text": "foreseeable actions and omissions of third parties since they have owned the land. The Bohatys concede that they are the owners of the property, and thus that they are potentially responsible parties under § 9607(a)(1); they dispute that they are potentially responsible parties under § 9607(a)(2), as the government argues, because they contend that no “disposal” of hazardous substance has occurred while they owned the property. The Bohatys also concede that a “release” of “hazardous substances” has occurred on the property, that at least one of the three parcels is a “facility,” and that the government incurred removal costs. They dispute the amount of the removal costs claimed by the government. The issues on appeal are (1) whether the district court erred when it decided that the Bohatys do not qualify for the “innocent landowner” defense of §§ 9607(b)(3) and 9601(35) set out above; (2) whether the district court erred when it decided that the two unaffected parcels are part of the “facility;” (3) whether the district court erred when it found that the costs of disposing of the empty barrels and the underground tank were properly part of the removal costs; and (4) whether the Boha-tys were deprived of due process by the actions of the EPA and the district court. B. The Innocent Landowner Defense The Bohatys argue first that they qualify for the “innocent landowner” defense of §§ 9607(b)(3) and 9601(35). The district court held that Defendants cannot assert such defenses because they cannot prove that (1) the release or threat of release of hazardous substances and the resulting damages were caused solely by an act or omission of a third party; (2) the third party’s act or omission did not occur in connection with a contractual relationship with the Defendants; (3) they exercised due care with respect to the hazardous substance; and (4) they took precautions against the third party’s foreseeable acts or omissions and the foreseeable consequences resulting therefrom. Opinion, J.A. at 62. Each of the four holdings, if correct, is dispositive standing alone. First, the district court held that hazardous substances were “released” by" }, { "docid": "296390", "title": "", "text": "Ash counter that the fly ash at issue was a valuable ingredient in road-base manufacturing and that they sold it to Skokie Valley with the sole expectation that the fly ash would be completely used up by the manufacturing process. A party’s characterization of its hazardous substance transaction as a sale does not automatically preclude a finding that the party is a responsible person under Section 9607(a). Selling hazardous substances as part of a complete, useful product does not generally make a party a responsible person. See Prudential Ins. Co. v. U.S. Gypsum, 711 F.Supp. 1244, 1254 (D.N.J.1989) (selling asbestos contained in fire-proofing and installation not arranging a disposal). Neither does selling a useful ingredient in a manufacturing process. United States v. Aceto Agr. Chemicals Corp., 872 F.2d 1373 (8th Cir.1989) (courts have refused to “impose liability where a ‘useful’ substance is sold to another party who then incorporates it into a product”); Edward Hines Lumber Co. v. Vulcan Materials Co., 685 F.Supp. 651, 656 (N.D.Ill.), aff'd on other grounds, 861 F.2d 155 (7th Cir.1988) (selling wood treat ment chemicals not arranging a disposal even when the buyer’s manufacturing process resulted in run-off). However, a party is a responsible person when a transaction—even though characterized as a “sale”—is a sham for a disposal. See Sanford Street Local Dev. Corp. v. Textron, Inc., 768 F.Supp. 1218, 1222-23 (W.D.Mich.1991) (sale of manufacturing facilities including hazardous substances at amount vastly below appraised value constituted disposal of the substances). A party can likewise be a responsible person when a party engages a third-party to refine a product and the refining process produces hazardous runoff. Aceto, 872 F.2d at 1381-82 (defendants arranged for disposal by engaging formulator to produce pesticide which resulted in runoff). As these cases show, there is no bright line between a sale and a disposal under CERCLA. A party’s responsibility under Section 9607(a)(3) must by necessity turn on a fact-specific inquiry into the nature of the transaction. Aceto, 872 F.2d at 1381 (“courts have not hesitated to look beyond defendants’ characterizations to determine whether a transaction in fact involves an arrangement" } ]

[ { "docid": "23241668", "title": "", "text": "to determine whether a particular veteran should be employed. * * *. Nor are we concerned with whether an employee should be discharged. That is properly in the hands of the affected department. * * *. Accord: Crowley v. United States, post at 415, 527 F. 2d 1176; Charley v. United States, post at 457; Saracena v. 206 Ct. Cl. 90, 508 F, 2d 1333(1975); Greenway v. United States, 175 Ct. Cl. 350, cert. denied, 385 U.S. 881 (1966); Harrington v. United States, 174 Ct. Cl. 1110, 1117 (1966); Knotts v. United States, 128 Ct. Cl. 489, 121 F. Supp. 630 (1954). As shown by all the foregoing authorities, and by many others which could be cited — for our experience with adverse actions in personnel cases is considerable — we have consistently interpreted determinations of what will promote the efficiency of the service under the Lloyd-LaFollette Act and the Veterans’ Preference Act (note 2) as discretionary with the employing agency officials and the Civil Service Commission. As stated above, the proper and historic scope of our consideration is to test whether such determinations are in good faith and supported by substantial evidence, or whether void because arbitrary, capricious, malicious or in bad faith, in excess of legal authority or in violation of statutes and regulations. Plaintiff must overcome the presumption of good faith on the part of the administrative officers. It requires almost irrefragable proof to demonstrate abuse of discretion sufficient to overcome the presumption. It is not even necessary that the court find that the agency construction is the only reasonable one or that it is the result the court would have reached had the question been permitted to arise in the first instance in judicial proceedings. It is enough if the decision has a rational basis by the standards enunciated and in the case law relied on here. Accordingly, we do not decide whether this legally faultless killing amounts to such cause for removal as will promote the efficiency of the service. That is not our function. II Thus, having charted the appropriate bounds of our review" } ]

[ { "docid": "22303597", "title": "", "text": "actions are correct and taken in good faith. It takes “well-nigh irrefragable proof” to overcome the presumption. Fucik v. United States, 655 F.2d 1089, 228 Ct.Cl. 379 (1981); Gaskins v. United States, 652 F.2d 70, 227 Ct.Cl. 563, 566 (1981); Diggin, 661 F.2d at 178. Sanders failed to present any proof and only attacked the quality of the government’s evidence. True, the paperwork of the police was not exemplary. But, it was all the MSPB had to go on and it was evidence which, as to its accuracy, was sworn to by Postal Inspector Gordon before Sanders was removed. Sanders next argues that the evidence against him was unreliable, not only because of hearsay but because the Postal Service was initially reluctant to identify the undercover agent. But, his identity was disclosed in the police reports which were in evidence before the MSPB, and Sanders engaged in no discovery. Further, he knew the Cl sufficiently well to engage in undenied conversations and an automobile trip with him. Sanders did not raise the identity issue before the MSPB. It is well established that generally, absent a nonfrivolous constitutional challenge, an issue cannot be raised for the first time in a judicial appeal. Cecil v. Department of Transportation, 767 F.2d 892 (Fed.Cir.1985); Lizut v. Department of the Army, 717 F.2d 1391 (Fed.Cir.1983); Grover v. United States, 200 Ct.Cl. 337, 345 (1973). This issue is impermissible and frivolous. Further, it would be a most peculiar and unjust procedure to permit Sanders to overcome the government’s documentary evidence on the grounds of hearsay when he offers nothing to counter it but his un-sworn, self-serving denial and is the one who precluded the government from offering live testimony, subject to cross-examination, by waiving a hearing, which under our precedent prevented the presiding official from granting the government’s request for a hearing. Callahan v. Department of the Navy, 748 F.2d at 1559. He cannot have it both ways. Furthermore, the presiding official of the MSPB set forth his reasons for concluding, on the record before him, that the government’s evidence was entitled to the greater credibility." }, { "docid": "22303595", "title": "", "text": "established that hearsay evidence may be substantial evidence in an administrative proceeding if there are circumstances which give it credibility and probative value to a reasonable mind. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229-30, 59 S.Ct. 206, 216-17, 83 L.Ed. 126 (1938); Darsigny v. OPM, 787 F.2d 1555 (Fed.Cir.1986); Hayes v. Department of the Navy, 727 F.2d 1535, 1538 (Fed.Cir.1984); Campbell v. FAA, 735 F.2d 497, 502 (Fed.Cir.1984); Diggin v. United States, 661 F.2d 174, 228 Ct.Cl. 578 (1981); Duvall v. United States, 647 F.2d 131, 227 Ct.Cl. 245 (1981); Cooper v. United States, 639 F.2d 727, 226 Ct.Cl. 75 (1980); Schaefer v. United States, 633 F.2d 945, 224 Ct.Cl. 541 (1980); Wathen v. United States, 527 F.2d 1191, 208 Ct.Cl. 342 (1975), cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976); Jacobowitz v. United States, 424 F.2d 555, 191 Ct.Cl. 444 (1970). What these and innumerable other precedents make clear is that administrative decisions based on hearsay must be evaluated on a case-by-case basis to determine if the hearsay is inherently truthful and more credible than the evidence offered against it. Therefore, hearsay has been held to be substantial evidence in some cases and not in others. In the case at hand, the presiding official correctly placed the burden of proving the charges by a preponderance of the evidence upon the postal service which then proceeded to make a prima facie case. Having done so, the burden of going forward with the evidence to rebut that showing shifted to Sanders who was in the best position to disprove it. Schapansky v. Department of Transportation, FAA, 735 F.2d 477, 482-83 (Fed.Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 432, 83 L.Ed.2d 358 (1984). Sanders sought to rebut with his uncorroborated flat denial. He never did explain to the MSPB his conduct with the confidential informant. He made no sworn statement to show how the police were wrong or that he was right. There is a strong presumption in the law that administrative" }, { "docid": "22692116", "title": "", "text": "making such a review of agency action, the MSPB must make sure that the agency considered all factors relevant to the case, such as the authorized range of penalties, the nature of the offense, its relation to the employee’s duties, the effect of the offense on the agency’s confidence in the employee, and possibly eight additional factors set forth in Douglas v. Veterans Administration, 5 MSPB 313 (1981). When the MSPB is satisfied that all relevant factors have been considered by the agency and there has been a responsible balancing of those factors, as occurred here, that ends the matter. As the board also pointed out in Douglas, id. at 328, “[mjanagement of the federal work force and maintenance of discipline among its members is not the Board’s function. Any margin of discretion available to the Board in reviewing penalties must be exercised with appropriate deference to the primary discretion which has been entrusted to agency management, not to the Board.” [Footnote omitted.] This view is confirmed by recent case law. The court is satisfied that the agency action, as affirmed by the MSPB, had a rational basis, was supported by substantial evidence, was in good faith, and was without an abuse of discretion or in violation of procedures required by law. Accordingly, under our statutory scope of review, 5 U.S.C. § 7703(c), we affirm the MSPB decision. AFFIRMED. . Fucik v. United States, 655 F.2d 1089, 228 Ct.Cl. 379 (1981); Brewer v. United States, 647 F.2d 1093, 227 Ct.Cl. 276 (1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982); Tucker v. United States, 624 F.2d 1029, 224 Ct.Cl. 266 (1980); Masino v. United States, 589 F.2d 1048, 218 Ct.Cl. 531 (1978); Urbina v. United States, 530 F.2d 1387, 209 Ct.Cl. 192 (1976); Barron v. United States, Ct.Cl. No. 408-81 (order, July 23, 1982); Swanson v. United States, 218 Ct.Cl. 755 (1978). See also Wathen v. United States, 527 F.2d 1191, 208 Ct.Cl. 342 (1975), cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976). . Richardson v. Perales, 402 U.S. 389, 91 S.Ct." }, { "docid": "21078401", "title": "", "text": "irregularity. See CACI Field Servs., Inc. v. United States, 13 Cl.Ct. 718, 729-30 (1987), aff'd, 854 F.2d 464 (Fed.Cir.1988) (citing Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804, 813 (Ct.Cl.1979)); Kalvar Corp., Inc. v. United States, 211 Ct.Cl. 192, 543 F.2d 1298, 1301-02 (Ct.Cl.1976); Wathen v. United States, 208 Ct.Cl. 342, 527 F.2d 1191, 1198 (Ct.Cl.1975), cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976). Plaintiffs factual allegations of misconduct are not supported by the record. Plaintiff bears the burden of proving such allegations in order to rebut the presumption of regularity given the actions of government officials. See Caldwell & Santmyer, Inc. v. Glickman, 55 F.3d 1578, 1581 (Fed.Cir.1995); Torncello v. United States, 231 Ct.Cl. 20, 681 F.2d 756, 771 (Ct.Cl.1982) (a plaintiff must present “well-nigh irrefragable proof’ that the government acted in bad faith). Therefore, plaintiff bears the burden of proving the government’s bad faith. See A-Transport Northwest Co., Inc. v. United States, 36 F.3d 1576, 1585 (Fed.Cir.1994). Plaintiffs allegation that defendant re-scored the technical proposals in a purposeful effort to deny the award to one offeror— plaintiff, and to direct the award to another — MVM, is unsubstantiated. The fact that plaintiffs technical score, which was the best in the TEB’s initial evaluation, was downgraded after Mr. Moore’s re-scoring, does not, without more, establish animus toward plaintiff — that is, that defendant was prejudiced against plaintiff specifically. This may be implied from the fact that Mr. Moore’s re-scoring affected 5 other offerors of the 7 “acceptable as submitted” offerors. Thus, 6 of the 7 rankings were changed by the re-scoring. Further, DynBorg’s score dropped almost as much as plaintiff’s (only .75 points less). Finally, the highest technical ranking after the re-scoring did not go either to plaintiff or to the successful bidder, MVM, but rather to AKAL (which ultimately did not receive the award because its price was too high). In fact, four other offerors had revised technical scores higher than UIIS’, and three had technical scores higher than MVM’s. Offeror Initial Score Revised Score AKAL 55.75 58 Pinkerton 57.50 57 General" }, { "docid": "22692107", "title": "", "text": "in this case must be affirmed unless it is found to be— 1. arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 2. obtained without procedures required by law, rule or regulation having been followed; or 3. unsupported by substantial evidence. In applying these criteria, the court recognizes that it should not try to place itself in the shoes of the agency and second-guess it. Agencies are vested by law with the discretionary authority and responsibility to determine what is necessary for their efficiency in discharging the missions assigned to them by Congress, 5 U.S.C. § 7513(a) (1982), and this must be determined on the merits of each individual case. No appellate court has the institutional competence or authority to find facts to determine what is for the efficiency of the service. Only the finder of the facts can do so. Green v. United States, 650 F.2d 285, 222 Ct.Cl. 600 (1980). A presumption of good faith attends agency action. Gaskins v. United States, 652 F.2d 70, 227 Ct.Cl. 563 (1981). There are hundreds of these agencies, and together they make hundreds of personnel decisions, sometimes thousands, on a daily basis. “The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies.” Bishop v. Wood, 426 U.S. 341, 349, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976). We discharge our own duty when we apply section 7703 to review an MSPB decision regarding an adverse agency action to determine whether the contested decision complies with the applicable statute and regulations and whether it has a rational basis supported by substantial evidence from the record taken as a whole. The record need only disclose such relevant evidence as might be accepted by a reasonable mind as adequate to support the conclusion reached. Weston v. HUD, 724 F.2d 943 at 948-949 (Fed.Cir.1983). This has been our consistent view and that of our predecessor, the United States Court of Claims, for many years, both before and after the Civil Service Reform Act of 1978, Pub.L. No." }, { "docid": "6583355", "title": "", "text": "degree of discretion given to the procurement officials by applicable statutes and regulations which, under Keco II, determines the degree of proof of error necessary for recovery; and (4) whether government officials violated pertinent statutes or regulations, which, if violated, may form the basis for recovery, but which need not automatically constitute grounds for such recovery. Keco II, 203 Ct.Cl. at 574. In analyzing the first criterion, whether subjective bad faith existed on the part of the procuring officials, this court must presume that public officials act “conscientiously in the discharge of their duties.” Kalvar Corp. v. United States, 543 F.2d 1298, 211 Ct.Cl. 192, 198 (1976), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 89 (1977) (quoting Librach v. United States, 147 Ct.Cl. 605, 612, 1959 WL 7633 (1959)). It requires “well-nigh irrefragable proof’ to overcome this presumption of good faith. Kalvar, 211 Ct.Cl. at 192 (quoting Knotts v. United States, 121 F.Supp. 630, 128 Ct.Cl. 489, 492 (1954)). Irrefragable proof has normally been equated with a showing of specific intent to injure the plaintiff. Kalvar, 211 Ct.Cl. at 199. Plaintiff presents no evidence, let alone irrefragable proof, from which this court could draw even an inference of bad faith. In light of the high standard of proof required, plaintiff has failed to demonstrate that the procuring officials acted with bad faith. Criteria two and three are most logically addressed together. Under the second criterion, plaintiff may be relief if it can demonstrate that the governmental agency lacked a reasonable basis for its action in the procurement process. The level of proof required to show that a decision was made without basis under the second criterion is established by the third criterion: it is related to the amount of discretion entrusted to the procurement officials. Courts have interpreted the Keco II decision to stand for the principle that the amount of proof needed to show the government official made a decision without reasonable basis is related to the amount of discretion granted to the contracting officer. Hayes Int’l Corp. v. United States, 7 Cl.Ct. 681, 685 (1985);" }, { "docid": "14868598", "title": "", "text": "presented, the court will not disturb the result.’ ” Van Cleave v. United States, 70 Fed.Cl. 674, 678-79 (2006) (quoting Pope v. United States, 16 Cl.Ct. 637, 641 (1989)). Judicial review of a correction board should not be an opportunity for courts to substitute their judgment for that of the military board when reasonable minds could reach differing conclusions. See Sanders v. United States, 219 Ct.Cl. at 303-05, 594 F.2d at 814-15. Stated otherwise, responsibility for determining whether a service member is fit or unfit to serve in the armed forces is not a judicial decision, and “courts cannot substitute their judgment for that of the military departments when reasonable minds could reach differing conclusions on the same evidence.” Heisig v. United States, 719 F.2d at 1156. The United States Supreme Court has noted that “judges are not given the task of running the Army____The military constitutes a specialized community governed by a separate discipline from that of the civilian.” Orlojf v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 97 L.Ed. 842, reh’g denied, 345 U.S. 931, 73 S.Ct. 779, 97 L.Ed. 1360 (1953); see also Porter v. United States, 163 F.3d at 1316. Moreover, “(j]udi-cial deference to administrative decisions of fitness for duty of service members is and of right should be the norm.” Maier v. Orr, 754 F.2d 973, 984 (Fed.Cir.), reh’g denied, 758 F.2d 1578 (Fed.Cir.1985). In addition, this court must recognize the strong presumption of regularity accompanying government proceedings, including that the military carries out its responsibilities properly, lawfully and in good faith. See Richey v. United States, 322 F.3d 1317, 1326 (Fed.Cir.2003); Porter v. United States, 163 F.3d at 1316. The plaintiff bears the burden of overcoming the “strong, but rebuttable, presumption” that the military discharges its duties “correctly, lawfully, and in good faith.” Bernard v. United States, 59 Fed.Cl. 497, 501 (quoting Hary v. United States, 223 Ct.Cl. 10, 17, 618 F.2d 704, 707 (1980) (citations omitted)), aff'd, 98 Fed.Appx. 860 (Fed.Cir.2004). In Fluellen v. United States, the court wrote: The plaintiff bears the burden of showing that the AFBCMR’s [Air Force Board" }, { "docid": "22608722", "title": "", "text": "[70 S.Ct. 177, 179, 94 L.Ed. 150] (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 [102 S.Ct. 2182, 72 L.Ed.2d 606] (1982). Id. 470 U.S. at 573-74, 105 S.Ct. at 1511; see also Danville Plywood Corp. v. United States, 899 F.2d 3 (Fed.Cir.1990). While the Supreme Court’s discussion of “clearly erroneous” was within the context of one judicial tribunal reviewing another judicial tribunal, the same principles govern our situation. This Court, a judicial tribunal, reviews the BVA, an administrative tribunal, which functions as a factfinder in a manner similar to that of a trial court, although, for the most part, in a non-adversarial setting. It is clear from the legislative history of the Veterans’ Judicial Review Act, 38 U.S.C. §§ 4051-4092 (1988) (hereinafter VJRA), that Congress intended that this Court’s application of the “clearly erroneous” standard parallel that of the Article III courts. Rule 52(a) of the Federal Rules of Civil Procedure provides that “[findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous.” This is the standard used by United States Courts of Appeals in reviewing findings of material fact made by United States District Courts and the United States Tax Court. During the floor debates on the VJRA, both Senator Cranston, Chairman of the Senate Committee on Veterans’ Affairs, and Representative Edwards expressed the view that the “clearly erroneous” standard of Rule 52(a) was to be used by this Court. 134 Cong.Rec. S16648 (daily ed. Oct. 18, 1988) (statement of Sen. Cranston); 134 Cong.Rec. H10360 (daily ed. Oct. 19, 1988) (statement of Rep. Edwards). It is not the function of this Court to decide whether a veteran was injured or whether any such injury occurred in or was aggravated during military service; rather, it is the function of this Court to decide whether such factual determinations made by the BVA in a particular case constituted clear error. Although this distinction may seem trivial, its significance cannot be overstated. In practical terms, under the “clearly erroneous” rule this Court is not permitted to substitute its judgment" }, { "docid": "21288903", "title": "", "text": "(serviceman’s rights are statutory, not contractual). Reinstatement and correction of records are remedies that may be awarded by this court incident to the award of back pay, under 28 U.S.C. § 1491(a)(2). This court has the authority to review decisions of military correction boards regarding service members’ entitlement to back pay or other monetary relief associated with improper discharge. See, e.g., Sanders v. United States, 594 F.2d 804, 219 Ct.Cl. 285 (1979). The court’s scope of review is limited, however, requiring deference to the board unless the plaintiff shows, by cogent and clearly convincing evidence, that the board decision was arbitrary or capricious, contrary to law or regulation, or unsupported by substantial evidence. E.g., Chappell v. Wallace, 462 U.S. 296, 303, 103 S.Ct. 2362, 2367, 76 L.Ed.2d 586 (1983); accord Arens v. United States, 969 F.2d 1034, 1037 (Fed.Cir. 1992) (citing Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed.Cir.), cert. denied, 479 U.S. 853, 107 S.Ct. 188, 93 L.Ed.2d 121 (1986)). Additionally, there is a strong presumption that military correction boards “faithfully discharge[] their duties,” see Grieg v. United States, 640 F.2d 1261, 1268, 226 Ct.Cl. 258 (1981), cert, denied, 455 U.S. 907,102 S.Ct. 1251, 71 L.Ed.2d 444 (1982), and that all military officials “discharge their duties correctly, lawfully, and in good faith.” See Sanders, 594 F.2d at 813. Although the courts presume that military boards interpret their regulations correctly, see Wronke, 787 F.2d at 1576, a reading that is clearly erroneous or inconsistent with the statute and regulations is not entitled to judicial deference. See Clayton v. United States, 225 Ct.Cl. 593, 595, 1980 WL 13179 (1980) (citing Sanders, 594 F.2d at 813; Skinner v. United States, 594 F.2d 824, 219 Ct.Cl. 322 (1979) (no deference required if board action was “arbitrary, capricious or in bad faith, or unsupported by substantial evidence or contrary to law, regulation, or mandatory published procedure of a substantive nature by which plaintiff has been seriously prejudiced”)). Even if the discharge is committed by statute to the military department’s full discretion, it nonetheless is reviewable for failure to comply with lawful statutory or regulatory" }, { "docid": "22564151", "title": "", "text": ". And see SMS Data Prods. Group, Inc., B-280970.4, 99-1 CPD ¶ 26, at 3, 1999 WL 40943 (Comp.Gen.1999); Patriot Contract Servs., et al., B-278276.11, 98-2 CPD ¶ 77, at 4, 1998 WL 650259 (Comp.Gen.1998); Burns & Roe Servs. Corp., B-248394, 92-2 CPD ¶ 124, at 5, 1992 WL 215397 (Comp.Gen.1992); PRC, Inc., B-233561.8, B-233561.9, 92-2 CPD ¶ 215, at 3-4, 1992 WL 278902 (Comp.Gen.1992). And see Discount Machinery & Equipment, Inc., B-231068, 88-1 CPD ¶ 608, at 3, 1988 WL 227346 (Comp.Gen.1988) (agency may amend solicitation unless \"showing of fraud or intentional misconduct by the government”). . It is well settled that government officials are presumed to act conscientiously and in good faith in the discharge of their duties. See, e.g., Spezzaferro v. Federal Aviation Admin., 807 F.2d 169, 173 (Fed.Cir.1986); Asco-Falcon II Shipping Co. v. United States, 32 Fed.Cl. 595, 604 (1994); Kalvar Corp. v. United States, 211 Ct.Cl. 192, 543 F.2d 1298, 1301-02 (1976). In order to overcome this presumption, \"plaintiff must allege and prove, by clear and strong evidence, specific acts of bad faith on the part of the government.” Asco-Falcon, 32 Fed.Cl. at 604 (citing Continental Collection & Disposal, Inc. v. United States, 29 Fed.Cl. 644, 652 (1993)). The level of proof to overcome this presumption is high, often described as requiring \"well nigh irrefragable proof.” Kalvar, 543 F.2d at 1301—02. While this standard is not intended to \"insulate government action from any review by courts,” Libertatia Assoc., Inc. v. United States, 46 Fed.Cl. 702, 707 (2000), according to the Federal Circuit, the \"well nigh irrefragable proof” standard \"has been equated with evidence of some specific intent to injure the plaintiff.” Kalvar, 543 F.2d at 1302; see also Librach v. United States, 147 Ct.Cl. 605, 614, 1959 WL 7633 (1959) (finding no bad faith because officials involved were not “actuated by animus”). . Plaintiff essentially would have this court second guess the Army’s decision that its needs have changed enough to warrant modification of the Solicitation. This court, however, will not accept this invitation to leave reason at the doorstep in construing section 15.206(a) of" }, { "docid": "14868599", "title": "", "text": "345 U.S. 931, 73 S.Ct. 779, 97 L.Ed. 1360 (1953); see also Porter v. United States, 163 F.3d at 1316. Moreover, “(j]udi-cial deference to administrative decisions of fitness for duty of service members is and of right should be the norm.” Maier v. Orr, 754 F.2d 973, 984 (Fed.Cir.), reh’g denied, 758 F.2d 1578 (Fed.Cir.1985). In addition, this court must recognize the strong presumption of regularity accompanying government proceedings, including that the military carries out its responsibilities properly, lawfully and in good faith. See Richey v. United States, 322 F.3d 1317, 1326 (Fed.Cir.2003); Porter v. United States, 163 F.3d at 1316. The plaintiff bears the burden of overcoming the “strong, but rebuttable, presumption” that the military discharges its duties “correctly, lawfully, and in good faith.” Bernard v. United States, 59 Fed.Cl. 497, 501 (quoting Hary v. United States, 223 Ct.Cl. 10, 17, 618 F.2d 704, 707 (1980) (citations omitted)), aff'd, 98 Fed.Appx. 860 (Fed.Cir.2004). In Fluellen v. United States, the court wrote: The plaintiff bears the burden of showing that the AFBCMR’s [Air Force Board for Correction of Military Records] action was arbitrary, capricious, unsupported by substantial evidence, or contrary to applicable statutes and regulations. Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed.Cir.1986); Hoskins v. United States, 40 Fed.Cl. 259, 271-72 (1998). To prevail under the arbitrary and capricious standard, plaintiff must demonstrate that evidence was ignored or unreasonably construed, or that designated duties were not performed by theAFBCMR. Kirwin [v. United States], 23 Cl.Ct. [497], 502 [(1991)]. Moreover, “plaintiff must overcome the presumption that ‘administrators of the military, like other public officers, discharge their duties correctly, lawfully, and in good faith.’ ” Chayra v. United States, 23 Cl.Ct. 172, 178 (1991), quoting Sanders [v. United States], 219 Ct.Cl. at 302, 594 F.2d at 813. “While the court might disagree with the board’s decision, it cannot substitute its own judgment for the board’s if reasonable minds could reach differing resolutions of a disputed fact.” Chayra, 23 Cl.Ct. at 178-179. Fluellen v. United States, 44 Fed.Cl. 97, 101 (1999), aff'd, 225 F.3d 1298 (Fed.Cir.), reh’g denied (2000). In her complaint, in" }, { "docid": "21078400", "title": "", "text": "indicate that the TEB did not actually meet and discuss Mr. Moore’s scores and arrive at a consensus before its recommendations were sent to the CO. The burden of proof, of course, is on plaintiff. See Hoel-Steffen Constr. Co. v. United States, 231 Ct.Cl. 128, 684 F.2d 843, 848 (Ct.Cl.1982); Tidewater Management Servs., 573 F.2d at 67; Keco Indus., 428 F.2d at 1233. Moreover, even if Mr. Moore, rather than the TEB alone, re-scored the proposals without complying with each TEB procedural rule, such failures are not significant, as the TEB’s role is clearly described in the solicitation as advisory only. See AR 2657. Also, the solicitation stated that the CO could reject the TEB’s advice. Thus, the CO alone had the ultimate authority and responsibility for evaluating each proposal. The lack of any documentation that defendant complied with each specific instruction of the RFP does not establish that defendant violated the RFP or the FAR, because the court must presume the regularity of government action absent any evidence (and none appears here) of actual irregularity. See CACI Field Servs., Inc. v. United States, 13 Cl.Ct. 718, 729-30 (1987), aff'd, 854 F.2d 464 (Fed.Cir.1988) (citing Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804, 813 (Ct.Cl.1979)); Kalvar Corp., Inc. v. United States, 211 Ct.Cl. 192, 543 F.2d 1298, 1301-02 (Ct.Cl.1976); Wathen v. United States, 208 Ct.Cl. 342, 527 F.2d 1191, 1198 (Ct.Cl.1975), cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976). Plaintiffs factual allegations of misconduct are not supported by the record. Plaintiff bears the burden of proving such allegations in order to rebut the presumption of regularity given the actions of government officials. See Caldwell & Santmyer, Inc. v. Glickman, 55 F.3d 1578, 1581 (Fed.Cir.1995); Torncello v. United States, 231 Ct.Cl. 20, 681 F.2d 756, 771 (Ct.Cl.1982) (a plaintiff must present “well-nigh irrefragable proof’ that the government acted in bad faith). Therefore, plaintiff bears the burden of proving the government’s bad faith. See A-Transport Northwest Co., Inc. v. United States, 36 F.3d 1576, 1585 (Fed.Cir.1994). Plaintiffs allegation that defendant re-scored the technical proposals in a" }, { "docid": "22692106", "title": "", "text": "evidence of guilt) and that he was divorced but had custody of his two minor children. He also argued that the penalty of removal was excessive. Petitioner presented four friends as character witnesses and testified himself in favor of mitigation of the removal penalty. Three agency officials supported the agency action. The appeal was unavailing. The presiding official placed emphasis on petitioner’s almost unlimited access to housing facilities where children reside, and the agency’s loss of confidence in petitioner’s ability to perform his duties lawfully. The penalty of removal was found to be within the agency’s Table of Penalties. Although petitioner had eight years of satisfactory government service, including four years with the Navy, this was held not to make removal unreasonable in view of the offense. Testimony of friends and neighbors was discounted because of the conviction. We turn next to petitioner’s challenges to the MSPB decisions which affirmed the agency action. This court’s scope of review of MSPB decisions is defined and limited by statute. 5 U.S.C. § 7703(c) (1982). The agency’s action in this case must be affirmed unless it is found to be— 1. arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 2. obtained without procedures required by law, rule or regulation having been followed; or 3. unsupported by substantial evidence. In applying these criteria, the court recognizes that it should not try to place itself in the shoes of the agency and second-guess it. Agencies are vested by law with the discretionary authority and responsibility to determine what is necessary for their efficiency in discharging the missions assigned to them by Congress, 5 U.S.C. § 7513(a) (1982), and this must be determined on the merits of each individual case. No appellate court has the institutional competence or authority to find facts to determine what is for the efficiency of the service. Only the finder of the facts can do so. Green v. United States, 650 F.2d 285, 222 Ct.Cl. 600 (1980). A presumption of good faith attends agency action. Gaskins v. United States, 652 F.2d 70, 227 Ct.Cl. 563 (1981)." }, { "docid": "6622757", "title": "", "text": "Contracts § 205 comments (d) and (e). Plaintiffs’ analysis appears to be more directed at changing long settled and controlling law than at correcting any misapplication of the law by the hearing officer. The law applicable to an allegation of Governmental bad faith is well-established. “Any analysis of a question of Governmental bad faith must begin with the presumption that public officials act ‘conscientiously in the discharge of their duties.’ ” Kalvar Corp. v. United States, 543 F.2d 1298, 1301 (Ct.Cl.1976), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 89 (1977), (quoting Librach v. United States, 147 Ct.Cl. 605, 612, 1959 WL 7633 (1959)). The hearing officer was required to presume that the Corps officials involved in this matter discharged their duties correctly, lawfully, and in good faith. Wathen v. United States, 527 F.2d 1191 (Ct.Cl.1975), cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976); Boyle v. United States, 515 F.2d 1397 (Ct.Cl.1975). That presumption cannot be dislodged until the plaintiff comes forward with “well-nigh irrefragable proof.” Fucik v. United States, 655 F.2d 1089, 1097 (Ct.Cl.1981); Sanders v. United States Post Service, 801 F.2d 1328, 1331 (Fed.Cir.1986). As the Court of Claims explained in Kalvar: [i]n the cases where the court has considered allegations of bad faith, the necessary ‘irrefragable proof has been equated with evidence of some specific intent to injure the plaintiff. Thus, in Gadsden v. United States, 111 Ct.Cl. 487, 489-90, 78 F.Supp. 126, 127 (1948), the court compared bad faith to actions which are ‘motivated alone by malice.’ Kalvar Corp., 543 F.2d at 1302. Under precedent binding on the hearing officer, plaintiffs were required to show that Colonel Hanson negotiated an unfair settlement with a “specific intent to injure the plaintiffs.” The hearing officer’s definition of bad faith, as defined in Black’s Law Dictionary — “the conscious doing of a wrong because of dishonest purpose or moral obliquity” — is no more demanding a standard for a plaintiff to meet than the standard which is the controlling law of the Federal Circuit. It is not in any way unreasonable. The entire" }, { "docid": "6622756", "title": "", "text": "in order to shift responsibility for deals made by plaintiff under the stress of financial necessity. Johnson, Drake & Piper, Inc. v. United States, 531 F.2d 1037, 1043 (Ct.Cl.1976) ; La Crosse Garment Mfg. Co. v. United States, 432 F.2d 1377, 1382 (Ct.Cl.1970). III. Plaintiffs contend the hearing officer’s determination on “bad faith” was based on an erroneous standard that fails to comply with the legal criteria of the Federal Circuit. Plaintiffs argue that a showing of bad faith requires only “action or inaction that harms a private party but may not be accompanied by a specific intent to injure____” Plaintiffs’ analysis of the case law that establishes the elements necessary to establish bad faith, case law that is binding in this court, is incorrect. The lesser standard urged by plaintiffs has not been accepted. Plaintiffs’ argument is a curious amalgam of misinterpretation of the Federal Circuit’s decision in Malone v. United States, 849 F.2d 1441, 1445 (Fed.Cir.1988), which did not address an allegation of bad faith, and an academic analysis of Restatement (Second) of Contracts § 205 comments (d) and (e). Plaintiffs’ analysis appears to be more directed at changing long settled and controlling law than at correcting any misapplication of the law by the hearing officer. The law applicable to an allegation of Governmental bad faith is well-established. “Any analysis of a question of Governmental bad faith must begin with the presumption that public officials act ‘conscientiously in the discharge of their duties.’ ” Kalvar Corp. v. United States, 543 F.2d 1298, 1301 (Ct.Cl.1976), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 89 (1977), (quoting Librach v. United States, 147 Ct.Cl. 605, 612, 1959 WL 7633 (1959)). The hearing officer was required to presume that the Corps officials involved in this matter discharged their duties correctly, lawfully, and in good faith. Wathen v. United States, 527 F.2d 1191 (Ct.Cl.1975), cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976); Boyle v. United States, 515 F.2d 1397 (Ct.Cl.1975). That presumption cannot be dislodged until the plaintiff comes forward with “well-nigh irrefragable proof.” Fucik v. United" }, { "docid": "22692117", "title": "", "text": "that the agency action, as affirmed by the MSPB, had a rational basis, was supported by substantial evidence, was in good faith, and was without an abuse of discretion or in violation of procedures required by law. Accordingly, under our statutory scope of review, 5 U.S.C. § 7703(c), we affirm the MSPB decision. AFFIRMED. . Fucik v. United States, 655 F.2d 1089, 228 Ct.Cl. 379 (1981); Brewer v. United States, 647 F.2d 1093, 227 Ct.Cl. 276 (1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982); Tucker v. United States, 624 F.2d 1029, 224 Ct.Cl. 266 (1980); Masino v. United States, 589 F.2d 1048, 218 Ct.Cl. 531 (1978); Urbina v. United States, 530 F.2d 1387, 209 Ct.Cl. 192 (1976); Barron v. United States, Ct.Cl. No. 408-81 (order, July 23, 1982); Swanson v. United States, 218 Ct.Cl. 755 (1978). See also Wathen v. United States, 527 F.2d 1191, 208 Ct.Cl. 342 (1975), cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976). . Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Diggin v. United States, 661 F.2d 174, 228 Ct.Cl. 578 (1981); Brewer v. United States, 647 F.2d at 1097-98; Duvall v. United States, 647 F.2d 131, 227 Ct.Cl. 245 (1981); Schaefer v. United States, 633 F.2d 945, 224 Ct.Cl. 541 (1980). . Masino v. United States, 589 F.2d 1048, 218 Ct.Cl. 531 (1978) (off-duty use of marijuana by customs officer); Wathen v. United States, 527 F.2d 1191, 208 Ct.Cl. 342 (1975), cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976) (murder charge); Holman v. United States, 383 F.2d 411, 181 Ct.Cl. 1 (1967) (immoral conduct); Staton v. United States, 228 Ct.Cl. 797, 804 (1981) (failure to perform duties); Green v. United States, 650 F.2d 600, 222 Ct.Cl. 600 (1980) (theft); Strothers v. United States, 218 F.2d 121, 220 Ct.Cl. 642 (1979) (heroin sale); Wynne v. United States, 618 F.2d 121, 220 Ct.Cl. 647 (1979) (employee violation of IRS rules of conduct); Schnakenberg v. United States, 618 F.2d 120, 219 Ct.Cl. 697 (1979) (sodomy). See also Gueory v." }, { "docid": "21916780", "title": "", "text": "one exception: A remand is unnecessary if “the record permits only one resolution of the factual issue.” (Id., citing Kelley v. Southern Pacific Co., 1974, 419 U.S. 318, 331-332, 95 S.Ct. 472, 479-80, 42 L.Ed.2d 498.) See also Inwood Laboratories v. Ives Laboratories, 1982,-U.S.-,---, 102 S.Ct. 2182, 2188-90, 72 L.Ed.2d 606, and the concurrence of Justice Rehnquist: I also assume, correctly I hope, that the Court’s discussion of appellate review of trial court findings in bench trials, ante, at-, is limited to cases in which the appellate court has not found the trial court findings to be “clearly erroneous.” United States v. United States Gypsum Co., 333 U.S. 364 [68 S.Ct. 525, 92 L.Ed. 746] (1948), upon which the Court relies, establishes the authority of a reviewing court to make its own findings, contrary to those of the trial court, where it has determined the latter to be “clearly erroneous.” (- U.S. at---, 102 S.Ct. at 2193.) III. The Burden of Proof. The district court ruled that Anti-Monopoly had the burden of showing genericness “by convincing evidence.” Anti-Monopoly II, 515 F.Supp. at 451-452. The case cited for that proposition, Feathercombs, Inc. v. Solo Products Corp., 2 Cir., 1962, 306 F.2d 251, does not announce such a rule. The only reference to “convincing evidence” is at 306 F.2d 256, and says nothing about burden of proof. There is a presumption in favor of a registered trademark, and the burden of proof is upon one who attacks the mark as generic, but the presumption can be overcome by a showing by a preponderance of the evidence that the term was or has become generic. See Vuitton et Fils S. A. v. J. Young Enterprises, 9 Cir., 1981, 644 F.2d 769, 775-776. IV. Generic Terms — The Law. Our opinion in Anti-Monopoly I binds both this court and the district court. There, we set out the law about generic terms and explained how it was to be applied to the particular facts of this case. Anti-Monopoly I, 611 F.2d at 300-306. In this opinion, we assume that the reader will be familiar with" }, { "docid": "1834359", "title": "", "text": "and with monetary consequences. In such event, the abuse of administrative discretion rises to the level of legal error____” Id. The second element is a nexus requirement. The plaintiff must either show that the error substantially affected the decision to separate him from active duty, or he must produce enough evidence to justify further inquiry by the court into the nexus between the legal error and the adverse action. Hary, 618 F.2d at 707. The standard articulated above is highly deferential toward the correction board’s decision. It reflects the fact that it is the executive branch, and not the courts, that are responsible for running the military. Grieg v. United States, 226 Ct.Cl. 258, 640 F.2d 1261, 1268 (1981) (citing Orloff v. Willoughby, 345 U.S. 83, 93, 73 S.Ct. 534, 97 L.Ed. 842 (1953)). Even if this court would come to a different conclusion based on the same set of facts, we will not generally overturn a decision by a military review board absent a showing of legal error. Sanders, 594 F.2d at 814. The determination of who is fit or unfit to serve in the military is a discretionary matter, firmly within the province of the military. Heisig v. United States, 719 F.2d 1153, 1156 (Fed.Cir.1983) (citing Orloff, 345 U.S. at 93-94, 73 S.Ct. 534). Therefore, the plaintiffs burden is a heavy one. He must produce evidence that “overcome[s] the strong, but rebuttable, presumption that administrators of the military, like other public officers, discharge their duties correctly, lawfully, and in good faith.” Sanders, 594 F.2d at 813 (citations omitted). This presumption extends to officers responsible for the rating of other officers. Guy v. United States, 221 Ct.Cl. 427, 608 F.2d 867, 870 (1979). 2. The 1989 OER Mr. Richey contends that the Correction Board acted in a manner that is arbitrary, capricious, and not in accordance with Army regulations when it failed to delete the 1989 OER. He argues that the Correction Board’s failure to delete the OER is legal error for two reasons: (i) the OER was substantially inaccurate; and (ii) the OER was not prepared in accordance" }, { "docid": "22303596", "title": "", "text": "hearsay must be evaluated on a case-by-case basis to determine if the hearsay is inherently truthful and more credible than the evidence offered against it. Therefore, hearsay has been held to be substantial evidence in some cases and not in others. In the case at hand, the presiding official correctly placed the burden of proving the charges by a preponderance of the evidence upon the postal service which then proceeded to make a prima facie case. Having done so, the burden of going forward with the evidence to rebut that showing shifted to Sanders who was in the best position to disprove it. Schapansky v. Department of Transportation, FAA, 735 F.2d 477, 482-83 (Fed.Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 432, 83 L.Ed.2d 358 (1984). Sanders sought to rebut with his uncorroborated flat denial. He never did explain to the MSPB his conduct with the confidential informant. He made no sworn statement to show how the police were wrong or that he was right. There is a strong presumption in the law that administrative actions are correct and taken in good faith. It takes “well-nigh irrefragable proof” to overcome the presumption. Fucik v. United States, 655 F.2d 1089, 228 Ct.Cl. 379 (1981); Gaskins v. United States, 652 F.2d 70, 227 Ct.Cl. 563, 566 (1981); Diggin, 661 F.2d at 178. Sanders failed to present any proof and only attacked the quality of the government’s evidence. True, the paperwork of the police was not exemplary. But, it was all the MSPB had to go on and it was evidence which, as to its accuracy, was sworn to by Postal Inspector Gordon before Sanders was removed. Sanders next argues that the evidence against him was unreliable, not only because of hearsay but because the Postal Service was initially reluctant to identify the undercover agent. But, his identity was disclosed in the police reports which were in evidence before the MSPB, and Sanders engaged in no discovery. Further, he knew the Cl sufficiently well to engage in undenied conversations and an automobile trip with him. Sanders did not raise the identity issue before" }, { "docid": "22608721", "title": "", "text": "to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. “In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. ” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 [89 S.Ct. 1562, 1576, 23 L.Ed.2d 129] (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342 [70 S.Ct. 177, 179, 94 L.Ed. 150] (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 [102 S.Ct. 2182, 72 L.Ed.2d 606] (1982). Id. 470 U.S. at 573-74, 105 S.Ct. at 1511; see also Danville Plywood Corp. v. United States, 899 F.2d 3 (Fed.Cir.1990). While the Supreme Court’s discussion of “clearly erroneous” was within the context of one judicial tribunal reviewing another judicial tribunal, the same principles govern our situation. This Court, a judicial tribunal, reviews the BVA, an administrative tribunal, which functions as a factfinder in a manner similar to that of a trial court, although, for the most part, in a non-adversarial setting. It is clear from the legislative history of the Veterans’ Judicial Review Act, 38 U.S.C. §§ 4051-4092 (1988) (hereinafter VJRA), that Congress intended that this Court’s application of the “clearly erroneous” standard parallel that of the Article III courts. Rule 52(a) of the Federal Rules of Civil Procedure provides that “[findings of fact, whether based on oral or documentary evidence, shall not be set aside unless" } ]

[ { "docid": "7518149", "title": "", "text": "mortgages to secure the legal fees Hoback had agreed to pay them for handling his criminal case in Arkansas. The mortgages were filed with the Shelby County Judge of Probate on the day of their execution — October 21, 1983. On that same day, while these real estate transactions were taking place, the United States filed a complaint for forfeiture in the United States District Court for the Northern District of Alabama against the four defendant parcels. The action was brought under 21 U.S.C. § 881 (1982 & Supp. IV 1986), which provides that property acquired with the proceeds of a proscribed drug transaction is forfeitable to the United States. The Government based its complaint on reliable information that indicated that Hoback had purchased the Riverchase parcels and constructed his residence with the proceeds of narcotics trafficking. In addition to this information, the Government relied on evidence found on October 19 during a search of the Ho-backs’ residence, including approximately $40,000 in currency believed to be the proceeds of drug transactions, and a passport which showed that Hoback had made several trips to Colombia and the Bahamas. Later searches uncovered three kilograms of cocaine and records of various narcotics transactions. A warrant issued upon the filing of the complaint, and the four parcels of land were seized by the filing of a lis pendens with the Shelby County Judge of Probate. The United States’ lis pendens was filed on October 21, 1983, moments after the filing of the mortgages given by Pamela Hoback to the attorneys. The three attorneys, Cessna Finance Corporation, and several lienholders filed claims in the forfeiture action. The attorneys asked the court to declare that their mortgages on the defendant parcels were valid and superior to the Government’s interest in the property. Cessna, in turn, alleged that it had “an equity” in the four parcels, because it previously had obtained a judgment against Jack Hoback in an Arkansas state court for failing to pay for an airplane he had purchased. During the course of the forfeiture proceedings before the district court, Cessna domesticated this judgment by" } ]

[ { "docid": "2633409", "title": "", "text": "the proceeds of ill-gotten gains. It strips the drug trade of its instrumentalities, including money, and finances government programs designed to eliminate drug trafficking. 95th Cong., 2nd Sess., 124 Cong. R. 23055-23057; 7 U.S.Code Cong. R. & Adm.News, 9496, 9523 (1978). If the government had to pay the entire amount of the mortgage principal to the Bank, Mr. Seraydar would directly benefit from his association with the drug trade. This cannot be allowed to happen. The counterclaim against Mr. Seraydar is therefore DENIED in part and GRANTED in part. In conclusion, Mr. Seraydar is not an innocent owner and therefore does not have a valid claim to the defendant property. The counterclaim by Mr. Seraydar for reimbursement of condominium maintenance fees is DENIED, because he has not prevailed on his claim. Based on equitable reasons, the counterclaim by the government is GRANTED in part. The Lis Pendens On August 22, 1986, the government recorded a lis pendens against claimant Seraydar’s personal residence located at 3860 N.E. 170 Street, North Miami Beach, Florida 33160. After trial, Mr. Seraydar moved the Court to dissolve the lis pendens. The Court took the matter under submission pending resolution of the case. For the following reasons, that motion is GRANTED. The government claims that it filed the notice of claim in order to protect Mr. Seraydar’s property as collateral for the $38,-000.00 loan from the Bank. This would be in the event that the government succeeds on its counterclaim. A lis pendens is a provisional remedy that notifies prospective purchasers and encumbrancers that any interest acquired by them in the subject property must succumb to the decree of the Court. Beefy King International, Inc., et al. v. Veigle, 464 F.2d 1102 (5th Cir.1972); Allstate Finance Corp. v. Zimmerman, 272 F.2d 323 (5th Cir.1959). Although a lis pendens ostensibly serves a notice function, its effect is to burden the alienability of the affected property pending the outcome of the suit. The jurisprudence has therefore limited the use of this provisional remedy to those cases where the required relief specifically affects the property. Beefy King International. Mr." }, { "docid": "16928373", "title": "", "text": "U.S.C. § 881(h). Buena Vista interpreted this to mean that, while the government doesn’t literally have title to the property before a final forfeiture judgment, the government does get an executory interest in the property as soon as its owners commit their illegal act. Once there is a final judgment of forfeiture, a “retroactive vesting” occurs, giving the government outright ownership of the property that dates back to the time of the illegal act. Buena Vista, 507 U.S. at 125, 113 S.Ct. 1126. Consequently, while it is clear that the government did not own the defendant property before the forfeiture judgment, the government did have an executory interest in the property in 1990, when the Paytons bought it with money they earned from illegal drug trafficking. Because the mortgage company did not record its lien until 1993, the government could reasonably argue that its senior executory interest survived the foreclosure. The claimants’ best response was to argue that they were “innocent” buyers who were therefore able to trump section 881(h)’s “relate back” provision. See 21 U.S.C. § 881(a)(6). The government argued that the claimants were on notice that the property might be tainted, and therefore were not innocent buyers. See United States v. 10986 Oak Run Circle, 9 F.3d 74, 76 (9th Cir.1993). Considerable evidence supported this argument. The claimants bought the property after the government filed a lis pendens, which gave notice to the world that the United States sought the judicial forfeiture of the property under drug forfeiture statutes. At least three of the six claimants knew about the lis pendens before purchasing the property. The government was surely justified in arguing that the lis pendens gave constructive notice of the forfeiture action to the other purchasers. See In re The Brickyard, 735 F.2d 1154, 1158 (9th Cir.1984); Cal. Civ.Code § 3146 (after a lis pendens is filed, purchasers are “deemed to have constructive notice of the pendency of the action”). The majority says that the claimants did not have “actual knowledge” that the government sought forfeiture because of drug crimes, Maj. Op. at 1152 n. 8 (emphasis" }, { "docid": "7518148", "title": "", "text": "W. Carlton Barnes and Chadd L. Durrett, Jr. Following his meeting with Hoback, Me-daris returned to Birmingham. On October 14 and 17, Medaris, using a power of attorney that Hoback had given to him on October 6, executed quit claim deeds transferring Hoback’s one-half interest in the four parcels of property in Riverchase to Pamela Hoback. The quit claim deeds recite consideration of one dollar and “other good and valuable consideration.” The power of attorney and the executed deeds were promptly recorded with the Judge of Probate of Shelby County, Alabama. On October 21, 1983, Pamela Hoback executed three documents that purported to give each of her husband’s three lawyers— Medaris, Barnes, and Durrett — a mortgage upon the four Riverchase parcels. Each of the mortgages recited that it was in the sum of $25,000. The mortgages, however, failed to disclose the obligation that they were to secure; the space following the words “evidenced by,” where the instrument of indebtedness should have been described, was left blank. The attorneys later testified that they received the mortgages to secure the legal fees Hoback had agreed to pay them for handling his criminal case in Arkansas. The mortgages were filed with the Shelby County Judge of Probate on the day of their execution — October 21, 1983. On that same day, while these real estate transactions were taking place, the United States filed a complaint for forfeiture in the United States District Court for the Northern District of Alabama against the four defendant parcels. The action was brought under 21 U.S.C. § 881 (1982 & Supp. IV 1986), which provides that property acquired with the proceeds of a proscribed drug transaction is forfeitable to the United States. The Government based its complaint on reliable information that indicated that Hoback had purchased the Riverchase parcels and constructed his residence with the proceeds of narcotics trafficking. In addition to this information, the Government relied on evidence found on October 19 during a search of the Ho-backs’ residence, including approximately $40,000 in currency believed to be the proceeds of drug transactions, and a passport which" }, { "docid": "22764142", "title": "", "text": "of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner. 21 U.S.C. § 881(a)(6) (emphasis added). . The Supplemental Rules for Certain Admiralty and Maritime Claims (the Supplemental Rules) govern judicial forfeitures under 21 U.S.C. § 881 (1988). United States v. $38,000.00 in United States Currency, 816 F.2d 1538, 1545 & n. 13 (11th Cir.1987). Supplemental Rule C(2) provides: In actions in rem the complaint shall be verified on oath or solemn affirmation. It shall describe with reasonable particularity the property that is the subject of the action and state that it is within the district or will be during the pendency of the action. In actions for the enforcement of forfeitures for violation of any statute of the United States the complaint shall state the place of seizure and whether it was on land or on navigable waters, and shall contain such allegations as may be required by the statute pursuant to which the action is brought. Fed.R.Civ.P.Supp. C(2); see abo United States v. Four Parcels of Real Property on Lake Forrest Circle, 870 F.2d 586, 588-89 n. 3 (11th Cir.1989) (describing requirements for complaint in forfeiture action); United States v. Certain Real Estate Property Located at 4880 S.E. Dixie Highway, 838 F.2d 1558, 1564 (11th Cir.1988) (requiring verified complaint); $38,000, 816 F.2d at 1545 (same); United States v. A Single Family Residence & Real Property Located at 900 Rio Vista Blvd., 803 F.2d 625, 632 (11th Cir.1986) (same). Supplemental Rule E(2) provides an additional particularity requirement for civil forfeiture complaints. See $38,000, 816 F.2d at 1548; Four Parcels on Lake Forrest Circle, 870 F.2d at 588-89 n. 3. In addition to fulfilling Rule C(2)’s requirements, the government’s complaint for civil forfeiture must \"state the circumstances from which the claim arises with such particularity that the ... claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.” Fed.R.Civ.P.Supp. E(2)(a). . Pate later pled guilty in federal court" }, { "docid": "21102058", "title": "", "text": "evidence but to assert a possessory interest over the property.” One Parcel of Real Property, Located at 9638 Chicago Heights, 27 F.3d at 330. Moreover, any remedy short of dismissal would vitiate the purpose of Good, as the government could continue the unlawful practice of seizing property without first providing notice or a hearing, just as it could do before Good. Accordingly, we hold that the lack of notice and a hearing prior to issuance of the warrants seizing the properties rendered the warrants “invalid and unconstitutional,” and that because the resulting seizure violated Richardson’s due process rights, the forfeiture action must be dismissed. One Parcel of Real Property, Located at 9638 Chicago Heights, 27 F.3d at 330. If statutory time constraints permit, however, the government may seek valid seizure warrants after an adversarial Good hearing and recommence the forfeiture proceedings. One Parcel of Real Property, Located at 9638 Chicago Heights, 27 F.3d at 330. CONCLUSION In light of the foregoing, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion. REVERSED and REMANDED. . In light of this ruling, we need not and do not address Richardson's argument that the district court erroneously granted summary judgment to the government. .Although Good was decided after the warrants were issued in this case, we apply its holding retroactively, as did the Good Court in finding that Good’s due process rights had been violated by the ex parte seizure. See James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 540-41, 111 S.Ct. 2439, 2446, 115 L.Ed.2d 481 (1991) (explaining that when case announcing federal rule applies rule retroactively, lower federal courts must also apply rule retroactively); United States v. All Assets and Equipment of West Side Building Corp., 58 F.3d 1181, 1191 (7th Cir.1995). . \"To establish exigent circumstances, the Government must show that less restrictive measures — i.e., a lis pendens, restraining order, or bond' — would not suffice to protect the Government's interests in preventing the sale, destruction, or continued unlawful use of the real property.” Good, — U.S. at" }, { "docid": "22081389", "title": "", "text": "exigency that might be posed by the threat of an encumbrance on, or transfer of, the property may be met by less restrictive means than seizure, for example, by the filing of a lis pendens, as was done in this case, along with a restraining order or bond requirement. See Kingsley, 802 F.2d at 580 (Coffin, J., concurring); id. at 582 (Torruella, J., dissenting). Thus, preseizure notice and hearing would not frustrate the statutory purpose of § 881(a)(7). See United States v. $8,850, 461 U.S. at 562 n. 12, 103 S.Ct. at 2011 n. 12. Moreover, despite the government’s contentions to the contrary, its own actions belie any claim of exigent circumstances in this case. The government instituted forfeiture proceedings against Serafine’s home on December 15, 1986, over six months after obtaining, pursuant to a state court search warrant, drug paraphernalia, drugs, money and weapons from Serafine’s premises. Thereafter, any risk that the property would be encumbered or transferred was met by the government’s filing of a lis pendens the very next day, which, as the district court indicated, made the property virtually non-transferr able. 667 F.Supp. at 82 n. 1. Also, the government could not reasonably have feared that the property would be “further used as an instrumentality of crime,” id. at 84, the ground relied on by the district court, in view of its occupancy agreement with Ser-afine. That agreement, of course, did not undo the constitutional harm; as indicated above, it allowed continued occupancy as a matter of grace, not entitlement. In sum, under all the circumstances there were no exigent circumstances justifying the seizure of Serafine’s home when the forfeiture action was started. We therefore hold that the decision of the district court approving the December 17, 1986 seizure was erroneous. It does not follow, however, that the forfeiture a year later, approved in the judge’s December 1987 opinion, was improper. Various circuit courts have held that the illegal seizure of property, standing alone, will not immunize that property from forfeiture, so long as impermissibly obtained evidence is not used in the forfeiture proceeding. See, e.g.," }, { "docid": "22764143", "title": "", "text": "brought. Fed.R.Civ.P.Supp. C(2); see abo United States v. Four Parcels of Real Property on Lake Forrest Circle, 870 F.2d 586, 588-89 n. 3 (11th Cir.1989) (describing requirements for complaint in forfeiture action); United States v. Certain Real Estate Property Located at 4880 S.E. Dixie Highway, 838 F.2d 1558, 1564 (11th Cir.1988) (requiring verified complaint); $38,000, 816 F.2d at 1545 (same); United States v. A Single Family Residence & Real Property Located at 900 Rio Vista Blvd., 803 F.2d 625, 632 (11th Cir.1986) (same). Supplemental Rule E(2) provides an additional particularity requirement for civil forfeiture complaints. See $38,000, 816 F.2d at 1548; Four Parcels on Lake Forrest Circle, 870 F.2d at 588-89 n. 3. In addition to fulfilling Rule C(2)’s requirements, the government’s complaint for civil forfeiture must \"state the circumstances from which the claim arises with such particularity that the ... claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.” Fed.R.Civ.P.Supp. E(2)(a). . Pate later pled guilty in federal court to a charge of managing a continuing criminal enterprise involving drugs. . The portion of the complaint relevant to the dozer stated: 1. This action is a civil action for forfeiture pursuant to [21 U.S.C. § 881(a)(6) ]. Jurisdiction is predicated upon [28 U.S.C. § 1345 (1988) ]. 7. On or about August 9, 1983, One (1) International Hough Model TD12 Dozer [with certain equipment] was purchased with $65,-000.00 in cash plus a trade in by J.C. Pate, Jr. On or about May 16, 1984, a new International Hough Ripper Model 12RS was purchased for this dozer by J.C. Pate, Jr. for $12,025.70 in currency. The transactions were carried out in the name of Bobby Daniels [sic]. 8. Confidential informants have informed federal agents that J.C. Pate, Jr., [and an associate] have been active in the importation of marijuana, cocaine, and other controlled substances since at least 1980. In October 1984, an unclaimed aircraft was seized by agents of the Drug Enforcement Administration on [a parcel of real property described in paragraph 1 of the" }, { "docid": "22257537", "title": "", "text": "regarding the nature of substitute assets in a criminal forfeiture proceeding. Jarvis contends that, under the New Mexico lis pendens statute, a notice of Us pendens is only proper where the underlying litigation involves a dispute affecting title to the same real property upon which the notice has been filed. He argues § 853(p) substitute property can never be the subject of such underlying litigation. Rather, he argues, the United States seeks a money judgment for the more than $158 million allegedly attributable to Jarvis’ criminal activities and that, under New Mexico law, a lis pendens cannot be used to secure a money judgment in an action unrelated to the property upon which the lis pendens has been placed. See Hill v. Dep’t of the Air Force, 884 F.2d 1321, 1322 (10th Cir.1989). Jarvis alleges the district court erred when ruling on his motion by concluding the threshold issue was whether a lis pendens constituted a restraint within the meaning of § 853. Instead, Jarvis argues, the court should have considered in the first instance whether the lis pendens notices were lawful as a matter of New Mexico state law. The United States responds that Jarvis’ state law argument was forfeited by his failure to present this theory to the district court. On the merits, the United States asserts the lis pendens notices were proper because title to the Mora properties could be affected by Jarvis’ conviction and, therefore, the criminal action against Jarvis is one affecting title to real property within the meaning of the New Mexico lis pendens statute. As to Jarvis’ argument regarding the prohibition on filing of a lis pendens in anticipation of a money judgment, the government contends Hill is distinguishable because it involved a lis pendens filed in anticipation of a money judgment in a civil tort suit rather than in a criminal forfeiture proceeding. III. DISCUSSION A. Forfeiture of Argument Raised for First Time on Appeal At no point in the proceedings below did Jarvis ever fully articulate the theory he relies upon now, that New Mexico lis pen-dens notices are improperly utilized" }, { "docid": "7518161", "title": "", "text": "find that Hoback’s attorneys have no rights in the defendant property under the sixth amendment and have no standing on the facts of this case to raise any alleged sixth amendment right belonging to their client; we therefore turn to an examination of Cessna’s claims. C. Cessna was not able to domesticate its Arkansas judgment until March 6, 1984. This judgment became a lien against the defendant property when it was filed with the Probate Court of Shelby County on April 2, 1984. See Ala.Code § 6-9-211 (1975). Such a lien does not relate back to the date of the foreign judgment. See Butler v. Hughes, 271 Ala. 363, 124 So.2d 265, 272 (1960). The United States filed its lis pendens on October 21, 1983. Under Alabama law, the rights of all subsequent lienors are subject to the judgment resulting from this forfeiture action. See Merrill v. Travis, 248 Ala. 42, 26 So.2d 258, 259 (1946). Thus, a simple ordering of priorities in the defendant property establishes the superior right of the United States. In any case, we note that the United States’ rights in property seized pursuant to section 881 relate back to the time of the wrongdoing that gave rise to the forfeiture. See United States v. $41,305.00 in Currency and Traveler’s Checks, 802 F.2d 1339, 1346 (11th Cir.1986) (“Illegal use immediately vests title to the property in the sovereign, and cuts off the rights of third parties to obtain legally protectible interests in the property.”). Thus, the United States has priority in the defendant property over any claim of Cessna. Nor is Cessna an innocent owner: it did not acquire rights in the defendant property until after it had notice that the property was the proceeds of illegal narcotics transactions. The district court therefore erred in holding that Cessna had an interest in the defendant property superior to that of the United States. III. We conclude that the interest of the United States in the defendant property is superior to that of both the attorneys and Cessna. The decision of the district court is, accordingly, reversed. On" }, { "docid": "22081370", "title": "", "text": "FEINBERG, Circuit Judge: This appeal raises substantial questions, some of first impression in this circuit, in connection with the government’s use of 21 U.S.C. § 881(a)(7), which provides for civil forfeiture of real property. Foremost among the issues before us is whether the government may seize a person’s home without first giving the homeowner an op portunity to be heard. Claimant-appellant Peter Serafine appeals from a final judgment in an in rem action forfeiting his interest as owner of record of the defendant premises. Appellant argues that the United States District Court for the Western District of New York, Michael A. Teles-ca, J., erred in granting summary judgment in favor of plaintiff-appellee United States and in denying Serafine’s earlier motions to dismiss the government’s complaint and for return of property. Appellant asks us to reverse the decision of the district court and dismiss the complaint or, alternatively, to remand the matter for trial. For reasons given below, we hold that the government’s seizure of appellant’s home at the inception of its in rem action was improper; nevertheless, we affirm the subsequent judgment of forfeiture of the district court. Background On December 15, 1986, the United States commenced this civil in rem forfeiture proceeding against the premises and real property located at 4492 South Livonia Road in the Town of Livonia, New York. The property named in the complaint consisted of a 120-acre parcel of land with a house, two barns and several small outbuildings. The government’s complaint alleged that the defendant property was used to facilitate the distribution of cocaine, a controlled substance, and was therefore subject to forfeiture under 21 U.S.C. § 881(a)(7). On December 16, 1986, the United States filed a notice of lis pendens against the property in the County of Livingston, identifying Serafine as the owner of record. On the same day, a warrant of seizure and monition was issued by a deputy clerk of the district court, in accordance with the procedures outlined in 21 U.S.C. § 881(b). Also on that day, the government appeared ex parte before then Magistrate (and now Judge) David G." }, { "docid": "23580903", "title": "", "text": "provides sufficient evidence of probable cause. At the same time, it es-tops all would-be claimants from attempting to refute an issue of fact already decided, namely, that the property was used to facilitate a § 1955 violation, thereby putting an end to any probable cause defense. [Emphasis added]. Yolanda Delio asserts that the district court improperly applied the doctrine of collateral estoppel against her based on her husband’s criminal conviction. She argues that she should not be collaterally estopped to attack probable cause since she did not have an opportunity to litigate her position in the criminal trial in which she was not a party. We agree. We hold that Mrs. Delio is not bound by the factual determinations made in connection with her husband’s criminal trial. See, e.g., Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1501-03 (11th Cir.1990). The application of the doctrine of collateral estoppel as to Yolanda Delio in this civil forfeiture action was an error of law. She is not bound by facts established in a prior proceeding where she was not a party, her interests were not represented, and she was not in privity with a party, her husband. We have not overlooked the general proposition that in a forfeiture action the defendant property is alleged to have committed the offense. The property is considered the guilty party, not necessarily the individuals who make claims therein. See, e.g., Austin v. United States, — U.S. -, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); United States v. Four Parcels of Real Property on Lake Forrest Circle, 870 F.2d 586, 590 nn. 10-11 (11th Cir.1989). However, that concept does not deny the rights of a claimant who seeks to introduce evidence of disputed facts. The error of applying the doctrine of collateral estoppel against Yolanda Delio established the basis for forfeiture. Therefore, the judgment against Yolanda Delio must be vacated and the case remanded to the district court for further proceedings to determine the factual basis for forfeiture upon the presentation of evidence. B. Disputed Issues of Fact Yolanda Delio contends that summary judgment was" }, { "docid": "22081388", "title": "", "text": "by forfeiture after an adversary proceeding. Moreover, the government’s interest in avoiding the burden of that additional procedure cannot be satisfied fully in any event, since a claimant can invoke adversary procedures after seizure, as Seraf-ine did here. With these interests in mind, we turn to the ultimate question of whether the due process balance in this context favors the homeowner or the government. In assessing the strength of the government’s interest, we must determine whether this case presented exigent circumstances warranting the postponement of notice and the opportunity for an adversarial hearing. As a general matter, a showing of exigent circumstances seems unlikely when a person’s home is at stake, since, unlike some forms of property, a home cannot be readily moved or dissipated. Cf. United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555, 562 & n. 12, 103 S.Ct. 2005, 2011 n. 12, 76 L.Ed.2d 143 (1983) (seizure of currency); Calero-Toledo, 416 U.S. at 679, 94 S.Ct. at 2089 (seizure of pleasure yacht). Any exigency that might be posed by the threat of an encumbrance on, or transfer of, the property may be met by less restrictive means than seizure, for example, by the filing of a lis pendens, as was done in this case, along with a restraining order or bond requirement. See Kingsley, 802 F.2d at 580 (Coffin, J., concurring); id. at 582 (Torruella, J., dissenting). Thus, preseizure notice and hearing would not frustrate the statutory purpose of § 881(a)(7). See United States v. $8,850, 461 U.S. at 562 n. 12, 103 S.Ct. at 2011 n. 12. Moreover, despite the government’s contentions to the contrary, its own actions belie any claim of exigent circumstances in this case. The government instituted forfeiture proceedings against Serafine’s home on December 15, 1986, over six months after obtaining, pursuant to a state court search warrant, drug paraphernalia, drugs, money and weapons from Serafine’s premises. Thereafter, any risk that the property would be encumbered or transferred was met by the government’s filing of a lis pendens the very next day, which, as" }, { "docid": "20049038", "title": "", "text": "to forfeiture. $84,000, 717 F.2d at 1101; One 1985 BMW 318i, 696 F.Supp. at 339. In the instant case, the Court found probable cause to believe that the property was subject to forfeiture based upon allegations in the verified complaint indicating that narcotics had been found on the defendant premises on September 12, 1987 in both the tavern and in the second floor apartment (Complaint ¶¶ 4, 5), and that four other drug-related arrests and seizures had occurred on the property (Complaint ¶ 6). Cf. United States v. One Parcel of Real Property Commonly Known as: 3400-3410 West 16th Street, Chicago, Ill., 636 F.Supp. 142, 146-47 (N.D.Ill.1986) (Aspen, J.) (verified complaint alleging multiple seizures of cocaine and heroin was sufficient to establish that property was being used to further narcotics activity and, therefore, that there was probable cause to believe the property was subject to forfeiture). Indeed, in their March 13, 1990 supplemental memorandum, claimants concede that the government satisfactorily demonstrated probable cause to believe that the defendant property was used to facilitate illegal drug transactions. (Claimants’ Supp.Mem. at 1.) Accordingly, the burden of proof has shifted to the claimants to show by a preponderance of evidence that the property should not be forfeited. See United States v. Parcel of Real Property Known as 6109 Grubb Road, MillCreek Tp., Erie County, Pa., 886 F.2d 618, 622 (3d Cir.1989). B. Innocent Ownership Defense In response to the government’s motion for summary judgment, the claimants have each submitted the affidavits discussed above to support their assertion that they are “innocent owners” of property. 21 U.S.C. § 881(a)(7) states that “no property shall be forfeited ..., to the extent of an interest of an owner by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.” Thus, to prevail on the “innocent ownership” defense, the claimants must prove by a preponderance of the evidence that whatever drug-related activity took place on their property was without their knowledge or consent. United States v. One Parcel of Property Located at 15" }, { "docid": "22638962", "title": "", "text": "party because taxpayer had filed lis pendens prior to recording of quitclaim deed that was issued to third party); Kulawy v. United States, 917 F.2d 729, 733-34 (2d Cir.1990) (court had jurisdiction over § 2410 quiet title action, even though government had sold property, because government still had lien on property at time suit was commenced) (citing Bank of Hemet v. United States, 643 F.2d 661, 665 (9th Cir.1981)). Similarly, such an action is jurisdictionally barred if, at the time it is commenced, the government claims a title interest rather than a lien interest. See, e.g., Bertie’s Apple Valley Farms v. United States, 476 F.2d 291, 292 (9th Cir.1973). Therefore, the district court lacked jurisdiction under § 2410 to evaluate the procedural validity of the tax liens that had been placed on the real property (such as the house that the Highs now own) which the government had sold prior to the commencement of this action. Jurisdiction also is lacking on any claims relating to personal property, such as previously garnished wages, in which the government now claims a title interest, instead of a mere lien interest. The practical upshot is that the Hugheses can only use § 2410 to challenge the continued collection of taxes through the garnishment of their wages. Second, the Hugheses’ procedural attack based on the IRS’s alleged failure to send notices of assessment and demand for payment under 26 U.S.C. § 6303(a) is insufficient to support a claim under § 2410. The district court found that “the Internal Revenue Service properly gave notice to the plaintiffs of the taxes due and requested payment of the amounts due.” Evidence of numerous notices supports the district court’s conclusion. See supra Part 11(A)(1). Therefore, while the Hugheses did properly allege a procedural defect, the district court properly found that no such defect existed. As a result, the Hugheses’ § 2410 claim fails. See Elias, 908 F.2d at 527-28 (allegation of IRS’s failure to follow § 6303(a) procedures did not support § 2410 claim because evidence demonstrat ed that requirements of § 6303(a) were satisfied). Finally, the Hugheses’ allegation" }, { "docid": "15039868", "title": "", "text": "for specific performance. In that case, just as here, the government contended that Newnham was in the position of a judgment lien creditor, whose interest was perfected when she secured the decree of specific performance. The court rejected this view: From start to finish, [Newnham’s] interest in the property was based on the agreement for the purchase and sale of the specific parcel of land. The interest did not arise from an attempt to collect a debt by executing against property which secured it, or to enforce a court judgment by levying against the property of the judgment debtor. In these latter situations, the identity of the specific property is unimportant ... Newnham, 813 F.2d at 1386. In Newnham, we held that an interest in real property is created by “virtue of [a] written executory contract” for the purchase of real property pursuant to IRS Code § 6323(h)(6)(B). Id. at 1386. The creation of that real property interest is protected against subsequent liens by the timely recor-dation of a lis pendens. Id. at 1385. We noted that “the remedy of specific performance is available to purchasers of land precisely because land is considered so unique.... ” Id. In Newnham, we did not hold that IRS Code § 6323(h)(6)(B) created an interest in any other provision of an exec-utory contract for the purchase of real property (e.g., an attorney’s fees provision). Nor did we expand the use of a lis pendens to protect any interest other than that of title to or right of possession of real property. A lis pendens serves to alert subsequent purchasers or secured parties of a potential senior security interest in the title or ownership of real property pending a possible judgment against that real property. To say that a lis pendens also gives a security interest in contractual provisions that do not relate to the title or right of possession of the real property is to distort the definition and purpose of a lis pendens. “A lis pendens filed with the county recorder is a notice that an action is pending ‘concerning real property or" }, { "docid": "22638961", "title": "", "text": "that there was “no evidence of any notice and demand having been mailed under 26 U.S.C. 6303(a).” The Hugheses also appear to attack the procedural validity of the liens by referring to “procedural lapses in an assessment under 26 U.S.C. § 6203.” 26 U.S.C. § 6203 requires, as a procedural matter, that a taxpayer be furnished with a copy of his assessment record if he so requests. We reject these arguments for several reasons. First, while a taxpayer may contest the procedural validity of a tax lien under § 2410, he may do so only if, at the time the action is commenced, the government still claims a lien or a mortgage on the property. If the government has sold the property prior to the filing of the suit, and no longer claims any interest in the property, § 2410 does not apply. See, e.g., Goodwin v. United States, 935 F.2d 1061, 1063-64 (9th Cir.1991) (taxpayer permitted to bring action to quiet title under § 2410(a)(1) even though government had already sold property to third party because taxpayer had filed lis pendens prior to recording of quitclaim deed that was issued to third party); Kulawy v. United States, 917 F.2d 729, 733-34 (2d Cir.1990) (court had jurisdiction over § 2410 quiet title action, even though government had sold property, because government still had lien on property at time suit was commenced) (citing Bank of Hemet v. United States, 643 F.2d 661, 665 (9th Cir.1981)). Similarly, such an action is jurisdictionally barred if, at the time it is commenced, the government claims a title interest rather than a lien interest. See, e.g., Bertie’s Apple Valley Farms v. United States, 476 F.2d 291, 292 (9th Cir.1973). Therefore, the district court lacked jurisdiction under § 2410 to evaluate the procedural validity of the tax liens that had been placed on the real property (such as the house that the Highs now own) which the government had sold prior to the commencement of this action. Jurisdiction also is lacking on any claims relating to personal property, such as previously garnished wages, in which the" }, { "docid": "23512146", "title": "", "text": "The second address for Mike’s was also a house in a residential neighborhood. Neither gives the appearance of housing a business that would legitimately generate anywhere near a quarter of a million dollars in cash. IV. A Under the civil forfeiture statute applicable to this case, “[a]ll moneys ... fur nished or intended to be furnished by any person in exchange for a controlled substance ..., all proceeds traceable to such an exchange, and all moneys ... used or intended to be used to facilitate any violation of’ the drug laws “shall be subject to forfeiture to the United States.” 21 U.S.C. § 881(a)(6) (1994). The government has the initial burden of showing probable cause to believe that the money is the proceeds of, or is otherwise connected to, any illegal drug transaction. United States v. Carrell, 252 F.3d 1193, 1201 (11th Cir.2001). Probable cause in this context is a “reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion — the same standard used to determine the legality of arrests, searches, and seizures in criminal law.” United States v. Four Parcels of Real Prop. in Greene & Tuscaloosa Counties, 941 F.2d 1428, 1440 (11th Cir.1991) (internal quotation marks and citations omitted); see also United States v. Cleckler, 270 F.3d 1331, 1334 (11th Cir.2001) (per curiam) (same); United States v. Four Parcels of Real Prop. on Lake Forrest Circle, 870 F.2d 586, 590 n. 10 (11th Cir.1989) (probable cause in this context is “the same standard used to determine the legality of arrests, searches, and seizures in criminal law”); United States v. $364,960.00, 661 F.2d 319, 323 (5th Cir. Unit B 1981) (noting “that the definition of probable cause applicable here is the same as that which applies elsewhere”). The government may use both circumstantial evidence and hearsay evidence to show probable cause. Four Parcels of Real Prop. in Greene & Tuscaloosa Counties, 941 F.2d at 1440. It does not need to show a relationship between the property and a particular drug transaction — only that the property was related to some" }, { "docid": "23580904", "title": "", "text": "where she was not a party, her interests were not represented, and she was not in privity with a party, her husband. We have not overlooked the general proposition that in a forfeiture action the defendant property is alleged to have committed the offense. The property is considered the guilty party, not necessarily the individuals who make claims therein. See, e.g., Austin v. United States, — U.S. -, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); United States v. Four Parcels of Real Property on Lake Forrest Circle, 870 F.2d 586, 590 nn. 10-11 (11th Cir.1989). However, that concept does not deny the rights of a claimant who seeks to introduce evidence of disputed facts. The error of applying the doctrine of collateral estoppel against Yolanda Delio established the basis for forfeiture. Therefore, the judgment against Yolanda Delio must be vacated and the case remanded to the district court for further proceedings to determine the factual basis for forfeiture upon the presentation of evidence. B. Disputed Issues of Fact Yolanda Delio contends that summary judgment was improperly granted in favor of the government because a genuine dispute existed as to the facts supporting probable cause under 18 U.S.C. § 1955. A Section 1955 violation is established by a probable cause showing of the following three elements: first, the enterprise violates state law; second, the illegal gambling business involves five or more persons who conduct, finance, manage, supervise, direct or own all or part of such business; and third, the business was either in substantially continuous operation for a period in excess of thirty (30) days or had a gross revenue of $2,000.00 in a single day. 18 U.S.C. § 1955(b) (1988); United States v. Tucker, 638 F.2d 1292, 1294 (5th Cir.Unit A Mar. 1981), cert. denied, 454 U.S. 833, 102 S.Ct. 132, 70 L.Ed.2d 111 (1981). The government has the initial burden of establishing probable cause to believe that the property was used to facilitate a violation of 18 U.S.C. § 1955. See United States v. One 1979 Porsche Coupe, 709 F.2d 1424, 1426-27 (11th Cir.1983). Once this burden is met," }, { "docid": "16928374", "title": "", "text": "U.S.C. § 881(a)(6). The government argued that the claimants were on notice that the property might be tainted, and therefore were not innocent buyers. See United States v. 10986 Oak Run Circle, 9 F.3d 74, 76 (9th Cir.1993). Considerable evidence supported this argument. The claimants bought the property after the government filed a lis pendens, which gave notice to the world that the United States sought the judicial forfeiture of the property under drug forfeiture statutes. At least three of the six claimants knew about the lis pendens before purchasing the property. The government was surely justified in arguing that the lis pendens gave constructive notice of the forfeiture action to the other purchasers. See In re The Brickyard, 735 F.2d 1154, 1158 (9th Cir.1984); Cal. Civ.Code § 3146 (after a lis pendens is filed, purchasers are “deemed to have constructive notice of the pendency of the action”). The majority says that the claimants did not have “actual knowledge” that the government sought forfeiture because of drug crimes, Maj. Op. at 1152 n. 8 (emphasis in original), but the government was justified in arguing that they did. The lis pendens specifically says that the government sought forfeiture “pursuant to Title 21, United States Code, Section 881.” Because 21 U.S.C. § 881 only applies in drug cases, the government was justified in arguing that claimants had notice that a drug forfeiture was afoot. It’s true that Roundhill I held that a lis pendens “does not necessarily impart knowledge of the previous owner’s illegal acts” because the government could have filed it as part of a non-criminal proceeding. Roundhill I, 194 F.3d at 1028. But that general rule doesn’t make sense here, where the lis pendens makes it obvious that the government accuses the property’s purchasers of drug offenses. The purchase price gave the government additional reason to justifiably argue that the claimants were not innocent owners. Knowing there was a dispute over the property, the claimants purchased it for only $354,000-about $200,000 less than its price five years earlier and around $230,000 less than its appraised market price. The government was" }, { "docid": "22764129", "title": "", "text": "absence of a triable issue of fact on the issue on which he has the burden of proof — that is, taking all the evidence in the light most favorable to the government, no reasonable jury could award the property to the government. If the claim ant fails to make such an affirmative showing, the court should deny the claimant’s motion. If the claimant does show, however, that no reasonable jury could find that the property was forfeit, the government, to defeat the claimant’s motion, must respond with evidence showing that a factual issue exists as to whether the property is forfeit. 2. In this case, the claimant, Daniel, moved for summary judgment. Our initial inquiry, then, is whether, as a matter of law, the Government demonstrated probable cause. This court has interpreted section 881(a)(6)’s probable cause requirement as “probable cause to believe that a substantial connection exists between the property to be forfeited and an illegal exchange of a controlled substance.” Single Family Residence, 803 F.2d at 628. As this court has emphasized, the government need not “actually prove by a preponderance of evidence a substantial connection to drug dealing.” United States v. $41,305.00 in Currency & Traveler’s Checks, 802 F.2d 1339, 1343 (11th Cir.1986); see also United States v. $364,960.00 in United States Currency, 661 F.2d 319, 324 (5th Cir. Unit B Nov. 1981) (evidence of probable cause “need not provide conclusive proof”). Instead, the government need only show “probable cause for belief” that such a connection exists. $4,255,000, 762 F.2d at 903 (quoting $364,960, 661 F.2d at 323). This court, moreover, has defined probable cause as a “ ‘reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion’ — the same standard used to determine the legality of arrests, searches, and seizures in criminal law.” United States v. Four Parcels of Real Property on Lake Forrest Circle, 870 F.2d 586, 590 n. 10 (11th Cir.1989) (quoting $364,960, 661 F.2d at 323); see also Single Family Residence, 803 F.2d at 628. Furthermore, as the court reiterated in Single Family Residence," } ]

[ { "docid": "9410106", "title": "", "text": "probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. . . .” 355 U.S. at 228-229, 78 S.Ct. at 242. The Lambert decision rested on three factors: (1) the crime was one of omission, not commission, (2) the situation to which the ordinance addressed itself was not such as might move one to inquire as to the applicable law and (3) the purpose of the statute was solely to compile a list which might assist law enforcement agencies. Because of the absence of each of these factors here, appellant’s conviction does not violate any of the considerations of fundamental fairness which moved the Court to act as it did in the Lambert case. While a line between offenses of commission and omission may sometimes be difficult to draw and, when drawn, may not always be a satisfactory yardstick, the distinction is nevertheless a legitimate consideration in deter mining the perimeters of the Due Process Clause. Section 922(g) (1), as construed and applied by the court below, imposes criminal sanctions only for the intentional doing of an act — the transporting of a firearm across state lines by one convicted of, or indicted for, a serious crime. Accordingly, it presupposes a situation, unlike that of merely being present in Los Angeles, where the defendant’s mind is specifically and consciously addressed to the prohibited conduct. That prohibited conduct, again unlike presence in a given city, is one which by its nature suggests the possibility of governmental regulation. In our judgment, the common community understanding regarding the potential hazards inherent in dealing with firearms and the common community knowledge that disabilities may follow from conviction of a serious crime preclude any argument that it is unconscionable to impose the burden of inquiry upon a felon who intends to transport a firearm and to penalize him if he proceeds to act without ascertaining the applicable law. Finally, the statute involved here is unlike the ordinance involved in the Lambert case. There, the court’s holding did not encourage ignorance of the law in an area" } ]

[ { "docid": "22188892", "title": "", "text": "that his possession of a firearm was unlawful. See United States v. Thompson, 25 F.3d 1558, 1563-64 (11th Cir.1994); see also Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939, 1945-46, 141 L.Ed.2d 197 (1998) (“[Ujnless the text of the statute dictates a different result, the term ‘knowingly’ merely requires proof of the knowledge of facts that constitute the offense.”). The prosecution need show only that the defendant consciously possessed what he knew to be a firearm. See United States v. Jones, 143 F.3d 1417 (11th Cir.1998) (“The crime of being a felon in possession of a firearm is easily understood. Possession alone is sufficient. The crime does not require any specific intent.”). Indeed, this Court has held that § 922(g)(1) “is a strict liability offense” and, consequently, does not require the prosecution to prove that the criminal acts were done with specific criminal intent. See Thompson, 25 F.3d at 1563-64 & n. 4. In other words, § 922(g)(1) has no mens rea requirement for the justification defense to negate. Thus, Deleveaux’s argument that justification is not an affirmative defense to § 922(g)(1) fails. Having determined that justification is an available affirmative defense to a § 922(g)(1) charge in extraordinary circumstances, we now assume that Deleveaux’s evidence warranted a jury instruction on that defense and examine whether the burden of proof regarding that defense fell on the Government or Deleveaux. B. Burden of Proof The Due Process Clause requires the prosecution to prove beyond a reasonable doubt every element of the charged criminal offense. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The burden to prove or disprove an element of the offense may not be shifted to the defendant. See id.; see also Patterson v. New York, 432 U.S. 197, 215, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Hall v. Kelso, 892 F.2d 1541, 1546 (11th Cir.1990). Thus, if a defendant asserts a defense that has the effect of negating any element of the offense, the prosecution must disprove that defense beyond a reasonable doubt. See Patterson, 432 U.S. at 210," }, { "docid": "9410097", "title": "", "text": "mistake or accident. The defendant did not request, and the court did not give, an instruction that the government had the burden of proving beyond a reasonable doubt that the defendant knew his acts were unlawful or otherwise wrongful. At trial the defendant, although he testified and produced other evidence in his behalf, did not tender any evidence (1) that he did not know he had been convicted of a crime punishable by a year’s imprisonment, (2) that he did not know that the gun was capable of expelling a projectile, or (3) that he did not know that it was unlawful for him to transport a gun in interstate commerce. The court below properly refused the two requested instructions. The court did charge that general criminal intent, an intent to do the act which the statute makes unlawful, was required. The general instruction with respect to intent and mistake or accident was all the defendant was entitled to on this point in the absence of any evidence supporting the particularized theories contained in the two requested instructions. United States v. Levinson, 405 F.2d 971 (6th Cir. 1968); United States v. Kahn, 381 F.2d 824 (7th Cir. 1967); Johnson v. United States, 370 F.2d 495 (9th Cir. 1966); Axelbank v. United States, 88 U.S.App.D.C. 147, 189 F.2d 18 (1951). With respect to appellant’s third point, which he stresses on this appeal, evidence was introduced during the trial from which the jury could have concluded that Weiler knew that his conduct was unlawful. The court’s charge, however, did not put this issue squarely to the jury. Since the failure to charge on this point would be “plain error” if defendant were right in his contention that specific criminal intent is an essential element of Section 922(g) (1), we must proceed to analyze defendant’s argument regarding that statute and the Constitution. United States v. Byrd, 352 F.2d 570 (2nd Cir. 1965). Section 922(g) (1) of the Gun Control Act does not on its face proscribe any particular state of mind as an element of the offense. Appellant concedes this, but suggests that" }, { "docid": "6028553", "title": "", "text": "now contends that the general “knowingly” instruction conflicts with the “knew that the firearm was a machine gun” instruction by describing “a different state of knowledge.” He claims the jury, applying the general instruction, could have convicted him without finding that he knew of the automatic capability of the Uzi. As there was no objection at the time of trial, we review these instructions for plain error. United States v. Bracy, 67 F.3d 1421, 1431 (9th Cir.1995). Gravenmeir fails to explain how these instructions conflict — how a jury could avoid finding that he “knew that the firearm was a machine gun” because of a general instruction that requires a defendant’s awareness of his acts. Gravenmeir’s reliance on our decision in United States v. Stein, 37 F.3d 1407 (9th Cir.1994) (disapproved on other grounds, Roy v. Gomez, 81 F.3d 863 (1996)), is misplaced. In Stein, the defendant was charged with money laundering, which required the government to prove that the defendant knew the money came from an unlawful activity — in other words, the defendant did not need to know that the act of laundering the proceeds was illegal, but he did need to know that the activity that produced the money was unlawful. Id. at 1410. The district court in Stein properly instructed on this aspect of the crime, but later gave the general knowingly definition quoted above, which contains the statement: “The Government is not required to prove that the defendant knew that his acts or omissions were unlawful.” Id. This general instruction purported to apply to all of the defendant’s actions — both the money laundering and the underlying crimes. We reversed because the general instruction directly conflicted with the previous specific instruction regarding the government’s need to prove the defendant’s knowledge of the illegality of the underlying activity. Id. There is no such conflict here. Section 922(o) does not involve different states of knowledge. The statute itself only states that it is unlawful to “possess a machinegun.” 18 U.S.C. § 922(o). While § 922(o) does not specify a mens rea element, the Supreme Court recently construed" }, { "docid": "18143069", "title": "", "text": "Thetford appeals. II. Thetford challenges the district court jury instruction on the felon in possession of a firearm charge. We review the district court’s formulation of the jury instructions for abuse of discretion and its interpretation of the law de novo. United States v. Cornelison, 717 F.3d 623, 626 (8th Cir.2013). Section 922(g) makes it unlawful for any convicted felon “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(1). A person who “knowingly violates” that provision faces up to a 10 year prison sentence. Id. § 924(a)(2). In order to convict Thetford of the offense, the district court required the jury to find (1) that Thetford had previously been convicted of a felony, (2) that he knowingly possessed the pistol, and (3) that the pistol was transported across a state line at some point during or before his possession of it. Thetford contends that the instruction should have contained an additional mens rea element requiring the government to prove that he possessed the firearm “knowing it had traveled in or affected interstate commerce.” Thetford’s argument is foreclosed by our decision in United States v. Garcia-Hernandez, 803 F.3d 994, 996-97 (8th Cir.2015). There, the court addressed the same question and held that “[t]he mens rea requirement in § 924(a)(2) does not apply to the interstate-commerce element of § 922(g)(1).” Id. Thetford contends that Garcia-Hernandez does not control, citing our en banc decision in United States v. Bruguier, 735 F.3d 754 (8th Cir.2013) (en banc). The Garcia-Hernandez court considered Bruguier, however, when it determined how the word ‘knowingly’ applies to the elements of § 924(a)(2). See 803 F.3d at 997-98. We conclude that the jury instruction given by the district court in Thetford’s case was correct because, as we explained in Garcia-Hemandez, “the government had to prove [Thetford’s] firearm ... had been in or affecting interstate commerce, not that he knew it had been in or affecting interstate commerce.” Id." }, { "docid": "6971814", "title": "", "text": "evidence must suggest knowledge of the antistructuring law as distinct from knowledge of financial institutions’ reporting requirements. See, e.g., United States v. Retos, 25 F.3d 1220, 1231 (3d Cir.1994) (reversing structuring conviction due to improper jury instruction but finding that, as defendant was an attorney, the jury could conclude he knew his structuring actions were unlawful); United States v. Dichne, 612 F.2d 632, 636-37 (2d Cir.1979) (upholding conviction for willfully violating a currency reporting statute where the Government posted notices in airport departure area that the law required travelers to report the transport of $5000 or more out of the country). We can find nothing in the record that suggests that Wynn knew that his structuring activity was criminal. We recognize, as did the Ratzlaf dissent, that the Court’s statutory interpretation could render prosecutions under section 5324, as it was then written, more difficult. Ratzlaf, — U.S. at —-—, 114 S.Ct. at 669-70 (Blackmun, J., dissenting). It would appear that this observation was not lost on Capitol Hill. Following Ratzlaf, Congress passed the Riegle Community Development and Regulatory Improvement Act, which added a criminal penalty provision to section 5324 that avoids any reference to “willfulness.” Pub.L. No. 103-325, § 411, 108 Stat. 2160, 2253 (1994). Nonetheless, we are required to apply to Wynn the law in force at the time he purchased the cashier’s checks. E. Conspiracy Finally, the jury convicted Wynn on one count of conspiracy, in violation of 18 U.S.C. § 371 (1988), in connection with the 66 money laundering, structuring, and obstruction of justice counts for which he was indicted. To establish a conspiracy, the Government must prove: (1) an agreement between two or more persons to commit an offense, (2) knowing participation in the conspiracy by the defendant with the intent to commit at least one of the substantive offenses charged, and (3) the commission of at least one overt act in furtherance of the conspiracy. United States v. Treadwell, 760 F.2d 327, 333 (D.C.Cir.1985). In addition to renewing his arguments that he had no knowledge of either the illegal provenance of Edmond’s and Lewis’s huge" }, { "docid": "14732846", "title": "", "text": "increase to James’s offense level for possessing or transferring a firearm with knowledge or reason to believe that the firearm would be used in connection with another felony .offense. See U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (1997). James appeals. II. A. Sufficiency of the Evidence “We review the district -court’s denial of a motion for judgment of acquittal based upon sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict” and “givfing] the government the benefit of all reasonable inferences that could logically be drawn from the evidence.” United States v. Vig, 167 F.3d 443, 445 (8th Cir.1999). Viewing the evidence in this light, we must uphold the verdict if “there is an interpretation of the evidence that would allow a reasonable-minded jury to find the defendant ] guilty beyond a reasonable doubt.” Id. We do not lightly overturn the verdict of a jury. See United States v. Gillings, 156 F.3d 857, 860 (8th Cir.1998). James contends that there was insufficient evidence of willfulness to sustain his convictions on counts 12 and 13 (alleging violations of 18 U.S.C. §§ 922(a)(5) and 924(a)(1)(D)) and count 15 (charging conspiracy to violate 18 U.S.C. §§ 922(a)(5) and 924(a)(1)(D)). The substantive offense articulated in section 922(a)(5) makes it unlawful for an unlicensed person “to transfer, sell, trade, give, transport, or deliver any firearm” to an unlicensed person who resides in a state other than the state in which the transferor resides; and section 924(a)(1)(D) prohibits the “willful” violation of this substantive offense. James contends his conduct was not willful because he was not aware he was violating the law when he and Baskerville transported firearms to Chicago. James testified that he did not sell any of the firearms and did not know that a federal license was required for transporting firearms across state lines. We find this argument to be unavailing. The Supreme Court has recently addressed this issue and defined “willful” broadly to include an act “undertaken with a bad purpose.” Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939, 1945, 141 L.Ed.2d 197 (1998) (internal" }, { "docid": "335360", "title": "", "text": "of different elements, the consecutive sentences were lawful and proper. We now must determine whether the district court’s analysis is correct. II On appeal, Nation argues that he has been convicted and sentenced twice for the commission of a single crime. He argues that cumulative sentences cannot be imposed under section 924(a) where the violations result from the same transaction or event. United States v. McDaniel, 550 F.2d 214 (5th Cir.1977); Rollins v. United States, 543 F.2d 574 (5th Cir.1977). Thus, Nation, citing McDaniel and Rollins, argues that since his two convictions under section 922(g)(1) and section 922(i) result from the single act of carrying a firearm across state lines, count 2 (section 922(i)) should be vacated. The standard for construing a sentencing statute involving a possible cumulative sentence for criminal violations was established long ago, as the district court noted, by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Under Blockburger, the appropriate inquiry is whether “each of the offenses created requires proof of a different element.” Id. 52 S.Ct. at 182. Expressed another way, the question is whether each violation requires proving a fact that the other does not. Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 1672, 84 L.Ed.2d 740 (1985). In analyzing Nation’s convictions, we find that different elements of proof are required for each conviction. Under section 922(g)(1), the government must prove not only that Nation transported the firearm between states, but also that Nation was a felon. Under section 922(i), however, the government must prove that Nation transported the firearm while knowing that it was stolen. Thus, these multiple convictions involve proving distinctly different elements and, under the Blockburger test, cumulative sentences would certainly seem allowable. Although this circuit has not specifically addressed the question of cumulative sentencing where violations of section 922(g) and section 922(i) have occurred, two other circuits have done so. In Hornbeck v. United States, 503 F.2d 1029, 1030 (8th Cir.1974), the Eighth Circuit specifically held that cumulative sentences could be imposed for violations of sections 922(g)" }, { "docid": "9410102", "title": "", "text": "fact and/or law was necessary before a regulated individual might be convicted of the offenses proscribed. In this context, we cannot attribute to inadvertence the failure of Congress to address itself to state of mind in Section 922(g) (1). In short, we construe Section 922(g) (1) as a Congressional determination (1) that the transportation of firearms in interstate commerce by persons previously convicted of, or charged with, serious crime presents a serious hazard to the public welfare without regard to whether the one doing the transporting knows of the Gun Control Act, and (2) that criminal sanctions are an appropriate way to cope with the problem. It is not our function to blunt or frustrate the thrust of this Congressional effort in the field of gun control unless the statute trespasses upon constitutionally protected territory. Accordingly, we turn to appellant’s argument that Section 922(g) (1), construed as we have done, violates the Due Process Clause of the Fifth Amendment of the United States Constitution. Appellant does not contest the power of Congress generally to create a criminal offense which does not require specific criminal intent as a prerequisite to conviction. He suggests, however, that this particular statute falls within a class prohibited by the Supreme Court’s decision in Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). In that case, the appellant had been convicted of violating a Los Angeles city ordinance which made it unlawful for “any convicted person” to be or remain in Los Angeles for a period of more than five days without registering with the police. The court assumed “that appellant had no actual knowledge of the requirement that she register under this ordinance, as she offered proof of this defense which was refused.” 355 U.S. at 227, 78 S.Ct. at 242. The question, accordingly, was “whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.” 355 U.S. at 227, 78 S.Ct. at" }, { "docid": "23590828", "title": "", "text": "contraband or had a legally justifiable reason to possess it temporarily.” Defendant’s Proposed Supp. Jury Instr. No. 1, id., tab 35 at 3. The court refused to give either instruction. We have previously considered the “fleeting possession” defense in the context of a § 922(g) conviction: [A] jury must acquit a defendant charged with possession of contraband when the evidence demonstrates not only that the defendant merely momentarily possessed contraband, but also that the defendant either lacked knowledge that he possessed dontraband or had a legally justifiable reason to possess it temporarily.... Thus, even if a felon held a firearm for a mere second or two, unless that felon truly did not know that what he possessed was a firearm or there was some recognized legal justification for his holding the firearm, § 922(g) will still impose criminal liability. If, however, a felon who momentarily possessed a firearm genuinely lacked knowledge that he possessed a firearm or had a legally justifiable reason for possessing it, the fleeting possession theory would apply because the government would have failed in its burden of proving intent. Therefore, the court need only give a fleeting possession instruction when the evidence at trial supports a possible finding that the defendant only momentarily possessed the contraband, and in so doing, lacked either knowledge he possessed contraband or criminal intent to possess it. Adkins, 196 F.3d at 1115 (emphasis added). We agree with the government and the district court that there is insufficient evidence to support “a possible finding that [Williams] only momentarily possessed the [firearm], and ... lacked either knowledge he possessed [the firearm] or criminal intent to possess it.” Rather, while the evidence suggests Miller may have passed the gun to Williams at the last moment prior to both men being searched, as indicated above, there is ample evidence that Williams knew he had the gun, and, in fact, tried to hide that fact. See United States v. Grissom, 44 F.3d 1507, 1513 (10th Cir.1995) (noting case where court held that theory of defense instruction properly refused when it “was essentially a recounting of the" }, { "docid": "23015850", "title": "", "text": "court of, a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g). “Firearm” is defined to mean “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” 18 U.S.C. § 921(a)(3)(A). That section, however, specifically excludes “an antique firearm” from the definition of firearm. Id. The mens rea requirement of § 922(g) prescribes that the defendant act “knowingly” in committing the violation. 18 U.S.C. § 924(a)(2). The district court instructed the jury on the mens rea requirement of § 922(g) as follows: The government also must prove that Mr. Frazier-El acted knowingly. This means that he possessed the firearm purposely and voluntarily, and not by accident, mistake or carelessness. It also means that he knew that the weapon was a firearm, as we commonly use the word. However, the government is not required to prove that Mr. Frazier-El knew that he was breaking the law. We believe that the district court’s instruction correctly stated the mens rea required for a violation of § 922(g). Under the district court’s instruction, while the jury would have to find that Frazier-El knew that his weapon was a firearm, it would not have to find that he knew the possession of a firearm constituted a violation of law. The conventional mens rea of criminal statutes, unless Congress clearly specifies otherwise, requires not that a defendant know that his conduct was illegal, but only that he “know the facts that make his conduct illegal.” Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994); see also United States v. International Minerals & Chem. Corp., 402 U.S. 558, 559, 562, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971) (holding that “knowingly violates” means knowledge of the “specific acts or omissions which violate the Act”). See generally United States v. Wilson," }, { "docid": "9410096", "title": "", "text": "the provisions of Section 922(g) (1) and of its applicability to him.” Weiler asserts that the statute, properly construed, as well as the Due Process Clause of the Fifth Amendment of the United States Constitution require that the prosecution shoulder this burden. At trial the defendant requested, but the court refused to give, instructions to the effect that the prosecution had the burden of proving beyond a reasonable doubt (1) that the defendant “knew that he had been convicted of a crime for which he could be imprisoned for one year or more,” and (2) that he “knew that the firearm in question was capable of ejecting a projectile.” The court did, however, instruct the jury (1) that the prosecution was required to prove beyond a reasonable doubt the defendant “intentionally” committed the act prohibited by the statute, (2) that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted and (3) that an act or failure to act is knowingly done if done voluntarily and not because of mistake or accident. The defendant did not request, and the court did not give, an instruction that the government had the burden of proving beyond a reasonable doubt that the defendant knew his acts were unlawful or otherwise wrongful. At trial the defendant, although he testified and produced other evidence in his behalf, did not tender any evidence (1) that he did not know he had been convicted of a crime punishable by a year’s imprisonment, (2) that he did not know that the gun was capable of expelling a projectile, or (3) that he did not know that it was unlawful for him to transport a gun in interstate commerce. The court below properly refused the two requested instructions. The court did charge that general criminal intent, an intent to do the act which the statute makes unlawful, was required. The general instruction with respect to intent and mistake or accident was all the defendant was entitled to on this point in the absence of any evidence supporting the particularized theories contained in the" }, { "docid": "15394592", "title": "", "text": "on the same jurisdictional element in upholding § 922(g)(1) against a Commerce Clause challenge. 86 F.3d 564, 568-570 (6th Cir.1996). The defendant in Chesney claimed that § 922(g)(1), which prohibits convicted felons from possessing firearms, lacked a substantial nexus with interstate commerce. This court held otherwise, finding that the jurisdictional element contained in § 922(g) rendered § 922(g)(1) fully consistent with the dictates of Lopez. In accord with our holding in Chesney, we find that the jurisdictional element applicable to § 922(g)(8) insulates the statute from a Commerce Clause challenge. Thus, we affirm the district court’s finding that Congress properly exercised its power to regulate commerce in enacting § 922(g)(8). B. Jury Instruction Baker next claims that the district court erred in failing to instruct the jury that it could not convict him of violating § 922(g)(8) unless he knew the law forbade him to possess firearms while subject to a domestic violence protection order. According to Baker, § 922(g)(8) is an obscure statute that punishes seemingly innocent conduct. Thus, Baker believes that unless construed to allow an ignorance of the law defense, § 922(g)(8) violates the due process principle requiring that individuals receive fair warning of the potential criminality of their conduct. We review a district court’s failure to give a requested jury instruction for abuse of discretion. See United States v. Frost, 914 F.2d 756, 764-67 (6th Cir.1990). As explained below, we find that the district court properly refused Baker’s requested instruction. Even those not versed in the law recognize the centuries-old maxim that “ignorance of the law is no excuse.” This maxim, deeply embedded in our American legal tradition, reflects a presumption that citizens know the requirements of the law. The benefits of such a presumption are manifest. To allow an ignorance of the law excuse would encourage and reward indifference to the law. Further, the difficulty in proving a defendant’s subjective knowledge of the law would hamper criminal prosecutions. Despite these important benefits, the ignorance maxim is not absolute. The Unit ed States Supreme Court has abrogated the maxim when faced with a law so technical" }, { "docid": "6396763", "title": "", "text": "PER CURIAM. Appellant appeals from his conviction as a felon in possession of a firearm. He now contends that the jury instructions defining constructive possession may have allowed the jury to convict him even if he did not know that a gun was present within an area over which he exercised dominion and control. The instructions in this case do not warrant reversal, but we write for the benefit of future cases to pinpoint a correctable ambiguity in previously approved language. Appellant, a convicted felon, was apprehended while driving alone in a stolen car. A knapsack was on the front passenger seat, and it contained, among other things, a loaded gun and a camera. Appellant denied ownership of the knapsack and its contents, but the film from the camera subsequently revealed photos of appellant. Appellant was indicted on counts including felon in possession of a firearm under 18 U.S.C. § 922(g), and, after a jury trial, he was convicted on that count. The district court instructed the jury on the requirement of “knowing” possession as follows. First, the jury was told twice that “the government must prove beyond a rea sonable doubt ... that the defendant knowingly possessed a firearm....” Next, “knowingly” was defined as: An act is done knowingly if it is done voluntarily and intentionally and not because of mistake or accident. I’ll say that again. An act is done knowingly if it is done voluntarily and intentionally and not because of mistake or accident. In order for the government to satisfy this element, it must prove beyond a reasonable doubt that the defendant knew he was possessing a firearm____ And then “possession” was defined as: The law recognizes two kinds of possession, actual possession and constructive possession____ Even when a person does not actually possess an object, he may be in constructive possession of it. Constructive possession exists when a person knowingly has the power and the intention at a given time of exercising dominion and control over an object or over the area in which the object is located. The law recognizes no distinction between actual" }, { "docid": "23244156", "title": "", "text": "1129, 1131 (9th Cir.2000); Miller, 105 F.3d at 555. Defendant asks us, in effect, to overrule those cases by importing the heightened standard of actual knowledge of the law from Cheek, Ratzlaf, and other cases involving “willful” violations of complex statutes. We are bound by our prior cases, however, and may not adopt Defendant’s suggestion. This court previously has noted the distinction between the requirements of “willful” and “knowing” behavior and has declined to import the Cheek/Ratzlaf requirement of actual knowledge of law into a statute that punished “knowing” behavior, even when the statute arguably is “highly technical.” See United States v. Pasillas-Gaytan, 192 F.3d 864, 867-68 (9th Cir.1999). In that case, the defendant was convicted of knowingly attempting to procure naturalization contrary to law. On appeal, he argued “that the government had to prove that he knew that applying for naturalization with [a] prior conviction was illegal.” Id. at 867. In rejecting that argument, this court declined to extend the reasoning from Rat-zlaf: “Because [18 U.S.C.] § 1425 requires only ‘knowing’ conduct, rather than imposing the stricter ‘willful’ requirement, we hold that [the defendant] did not have to know that procuring naturalization was a criminal act.” Id. at 868. Consistent with Pasillas-Gaytan, we decline to read the element of actual knowledge of the statute into 18 U.S.C. § 922(g)(9). Our holding also disposes of Defendant’s first jury-instruction argument. Because Defendant’s requested instruction did not accurately set out the mental state required for prosecution under 18 U.S.C. § 922(g)(9), the district court did not err in refusing to give it. b. Conduct Under 18 U.S.C. § 922(g)(9) Alternatively, Defendant argues that, if the government was not required to prove that he actually knew about 18 U.S.C. § 922(g)(9), then the statute violates due process as applied to him. Specifically, he argues that his case falls within the exception to the rule that “ignorance of the law is no excuse” created by Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). In Lambert, the defendant was convicted under a provision of the Los Angeles Municipal Code that" }, { "docid": "17016955", "title": "", "text": "$500 and sentenced him to eighteen months imprisonment, the execution of which was to be suspended after sixty days on condition of probation for eighteen months. On appeal Udofot argues that the trial court erred (1) in refusing to give a specific intent instruction on 18 U.S.C. § 922(e); (2) in instructing the jury that notice is required under the “passenger exception” of section 922(e); and (3) in denying his motion to suppress. He further argues that section 922(e) is unconstitutionally vague and violates due process, and that the conduct of government agents was so outrageous as to violate due process. I. Appellant’s chief contention is that the trial court erred in refusing to give a jury instruction on specific intent, which he claims is an essential element of 18 U.S.C. § 922(e). The trial court instead gave the following instruction: The mere delivery of a firearm to a common carrier, without giving notice to the carrier, is a violation of the code section that I just read to you regarding Count I. It is not necessary for the government to prove that the defendant knew that notifying the carrier was required. It is sufficient if you find beyond a reasonable doubt that he knowingly delivered a firearm. We say an act is knowingly done if it is done voluntarily and intentionally and not because of mistake, accident or some other innocent reason. We add the word “knowingly” to make certain that no one is convicted of a crime, for an act which they do by mistake or accident or for some innocent reason other than knowing about it. The seminal case on the issue of specific intent in federal firearms laws is United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). In Freed the Supreme Court held that there was no requirement of specific intent or knowledge in cases charging the defendant with receiving or possessing a firearm not registered to him under 26 U.S.C. § 5861(d). Relying on Freed, courts have repeatedly refused to read a specific intent requirement into other firearms statutes." }, { "docid": "22267734", "title": "", "text": "the defendant aided and abetted in its commission. The court noted that to be guilty of this offense, the Government had to prove that (1) possession with intent to distribute was committed by someone; (2) the defendant knowingly and intentionally aided, counseled, commanded, induced, or procured that person to commit possession with intent to distribute methamphetamine; and (3) the defendant acted before the crime was completed. Delgado asserts that both of -the charged crimes include an element that he knew that his actions were unlawful and, thus, Instruction Number 9 improperly relieved the Government of its burden to prove this element. The Due Process Clause requires the Government to prove all the elements of a crime beyond a reasonable doubt. United States v. Orduno-Aguilera, 183 F.3d 1138, 1140 (9th Cir.1999). A jury instruction cannot relieve the Government of this burden. Patterson v. Gomez, 223 F.3d 959, 962 (9th Cir.2000). First, Delgado argues that to convict for possession of a controlled substance with the intent to distribute, the Government must prove that Delgado knew he possessed a controlled substance; this requirement, he contends, directly conflicts with the emphasized text in Instruction Number 9, which excuses the Government from proving that he knew that his activity was unlawful. This court addressed this purported conflict in United States v. Cain, 130 F.3d 381, 384 (9th Cir.1997). In Cain, the district court instructed the jury that the intent-to-distribute offense did not require that Cain actually knew he was distributing cocaine, but only that he knew he was distributing an illegal substance. Id. The court also gave the typical ignorance-of-the-law instruction: “The government is not required to prove that the defendant knew that his acts were unlawful.” Id. Explaining the failure of Cain’s argument that these'two instructions conflicted, the court said: Cain did not have to know that possession of a controlled substance was illegal. He only had to know that the substances he possessed were controlled substances. Therefore,, when the court instructed that the government did not have to prove Cain knew his acts were illegal, the court did not say that Cain needed" }, { "docid": "23244157", "title": "", "text": "imposing the stricter ‘willful’ requirement, we hold that [the defendant] did not have to know that procuring naturalization was a criminal act.” Id. at 868. Consistent with Pasillas-Gaytan, we decline to read the element of actual knowledge of the statute into 18 U.S.C. § 922(g)(9). Our holding also disposes of Defendant’s first jury-instruction argument. Because Defendant’s requested instruction did not accurately set out the mental state required for prosecution under 18 U.S.C. § 922(g)(9), the district court did not err in refusing to give it. b. Conduct Under 18 U.S.C. § 922(g)(9) Alternatively, Defendant argues that, if the government was not required to prove that he actually knew about 18 U.S.C. § 922(g)(9), then the statute violates due process as applied to him. Specifically, he argues that his case falls within the exception to the rule that “ignorance of the law is no excuse” created by Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). In Lambert, the defendant was convicted under a provision of the Los Angeles Municipal Code that made it unlawful for convicted felons to be or remain in the city for more than five days without having registered with the police. The defendant, a convicted felon, was unaware that she was required to register and had lived in Los Angeles for seven years without doing so. She was arrested on another matter and ultimately was convicted of failing to register. See id. at 226, 78 S.Ct. 240. The Supreme Court reversed her conviction. See id. at 227, 78 S.Ct. 240. The Court reasoned that the defendant’s failure to register was “wholly passive” and “unaccompanied by any activity whatever, mere presence in the city being the test.” Id. at 228-29, 78 S.Ct. 240. Her omission to act was, therefore, “unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.” Id. at 228, 78 S.Ct. 240. In these circumstances, the Court held, the defendant could “not be convicted consistently with due process” without notice of the registration requirement. Id. at 229-30," }, { "docid": "16734078", "title": "", "text": "license — is not innocent in the way an everyday, uninformed citizen may unintentionally violate complex, confusing tax laws. Rather, exporting defense articles can only be achieved by educated parties with atypical access to proprietary military weapons, systems, and data. By Roth’s own admission, he knew that receiving “6.2” funds from the Air Force imposed regulations on his research. Finally, the Federal Firearms Act considered in Bryan is extremely similar to the statute considered here. Both impose criminal sanctions for actions involving highly regulated weapons, and both have similar willfulness requirements that apply broadly to violations of their respective statutes. It follows, then, that the Supreme Court’s analysis in Bryan applies to the Act. Accordingly, following Bryan and the swath of cases from other circuits interpreting section 2778(c), we hold that section 2778(c) does not require a defendant to know that the items being exported are on the Munitions List. Rather, it only requires knowledge that the underlying action is unlawful. The instruction given by the district court defined willfulness as doing something intentionally that the defendant knew was unlawful, which falls in line with Bryan, the other circuits’ interpretations of section 2778(c), and now our holding here. As a result, the district court’s jury instruction regarding willfulness was proper. 2. Ignorance of the law When a district court refuses to give a requested jury instruction, we will reverse that decision “only when (1) the requested instruction is a correct statement of the law; (2) the requested instruction is not substantially covered by other instructions actually delivered; and (3) the failure to give the requested instruction impairs the defendant’s theory of the case.” United States v. Tarwater, 308 F.3d 494, 510 (6th Cir.2002) (citing United States v. Chesney, 86 F.3d 564, 573 (6th Cir.1996)). The ignorance of the law as a defense instruction would not have been a correct statement of law. Roth incorrectly asserts that multiple circuits have held that ignorance of the law is a separate defense to charges under the Act. In fact, no circuit court has decided this issue. Indeed, the Supreme Court has identified only" }, { "docid": "9410095", "title": "", "text": "OPINION OF THE COURT STAPLETON, District Judge. Appellant, Harry Weiler, was found guilty of violating Section 922(g) (1) of Title 18 of the United States Code, and was sentenced to two years probation and fined $500.00. Section 922(g) (1) provides: “(g) It shall be unlawful for any person— (1) who is under indictment for, or who \"has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; * * -X- * * to ship or transport any firearm or ammunition in interstate or foreign commerce.” Weiler stipulated below that he had previously been convicted of a crime punishable by imprisonment for a term exceeding one year. There was ample evidence to support the jury’s conclusion that Weiler transported a hand gun from New Jersey to Pennsylvania on February 9, 1970. Weiler maintains, however, that his conviction must be overturned because the court failed to instruct the jury that the prosecution had the burden of proving beyond a reasonable doubt that he “had knowledge or probability of knowledge of the provisions of Section 922(g) (1) and of its applicability to him.” Weiler asserts that the statute, properly construed, as well as the Due Process Clause of the Fifth Amendment of the United States Constitution require that the prosecution shoulder this burden. At trial the defendant requested, but the court refused to give, instructions to the effect that the prosecution had the burden of proving beyond a reasonable doubt (1) that the defendant “knew that he had been convicted of a crime for which he could be imprisoned for one year or more,” and (2) that he “knew that the firearm in question was capable of ejecting a projectile.” The court did, however, instruct the jury (1) that the prosecution was required to prove beyond a reasonable doubt the defendant “intentionally” committed the act prohibited by the statute, (2) that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted and (3) that an act or failure to act is knowingly done if done voluntarily and not because of" }, { "docid": "1744834", "title": "", "text": "bribery and illegal gratuity statute not to be unconstitutionally vague or overbroad as applied to elected federal officeholders, we do not cite it as a model of clarity and nicely drawn distinctions. We do find that the prohibited acts are sufficiently well defined for the guidance of any public official such as Brewster or person such as defendant Anderson in relation to a public official. And further, we believe that it is possible to draw an intelligible charge to the jury defining the difference between prohibited offenses and legal conduct in the making of political contributions. Where the sttaute does cause great difficulty for a trial judge, a difficulty which we hold proved fatal to the conviction in this case, is that in addition to the problem of drawing a distinction between one definable offense and innocent conduct, where both offenses are charged a trial judge must also draw a tripartite distinction between conduct with the defined intent to constitute an offense under the bribery section (c), conduct with the requisite intent to constitute an offense under the gratuity-section (g), and conduct with an intent which constitutes no offense at all. The trial judge strove manfully — and judicially — to make these fine distinctions for the jury. Yet we have found it difficult ourselves, with adequate time to reflect and ponder, to understand the subtle distinctions made in the written text of the instructions. With the advantages of time, a written text, and a modicum of legal learning, we are doubtful if we comprehend fully the trial court’s explanation of the subtle distinctions between guilt under one section, guilt under the other, and total innocence. We are certain that the jury could not possibly have discerned the boundary lines on the basis of these instructions, and this a jury must be able to do in order to convict a defendant on any charge. We do not fault the District Judge here for his failure to illuminate the obscure; it may not be easy under this statute to make the tripartite distinction, although we think it is clearly possible to" } ]

[ { "docid": "22181110", "title": "", "text": "Met-Life’s administrative appeals process. Saffon sued the Plan under 29 U.S.C. § 1132(a), seeking payment of withheld benefits, attorney’s fees and a declaration that she is disabled. After a bench trial on the administrative record, the district court concluded that the Plan hadn’t abused its discretion and denied Saffon any relief. Standard of Review 1. We review benefits denials de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits;” if the plan does grant such discretionary authority, we review the administrator’s decision for abuse of discretion. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Here, the Plan’s Summary Plan Description states: In carrying out their respective responsibilities under the Plan, the Plan administrator and other Plan fiduciaries shall have discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to Plan benefits in accordance with the terms of the Plan. Saffon argues that we must review MetLife’s decision de novo because it is unclear whether the Summary Plan Description’s discretionary clause refers to MetLife. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999) (en banc) (we defer only if the grant of discretionary authority is “unambiguous[ ]”). Saffon sees an ambiguity in the fact that the Summary Plan Description doesn’t refer to MetLife by name; instead, it grants discretionary authority to “the Plan administrator [Wells Fargo] and other Plan fiduciaries.” But it’s perfectly clear that MetLife is included in this grant of discretionary authority because it is one of the “other Plan fiduciaries” mentioned there. A “fiduciary” is an entity with “any discretionary authority” in the “administration of’ an ERISA plan. 29 U.S.C. § 1002(21)(A). See Aetna Health Inc. v. Davila, 542 U.S. 200, 220, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (“When administering employee benefit plans, HMOs must make discretionary decisions regarding eligibility for plan benefits, and, in this regard, must be treated as plan fiduciaries.”). MetLife’s Certificate of Insurance provides that “MetLife in its discretion has authority to interpret the terms, conditions," } ]

[ { "docid": "1551522", "title": "", "text": "must conduct, pursuant to Rule 52, Federal Rules of Civil Procedure, a bench trial based on the administrative record and such other evidence as the Court admits. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir.) (en banc) cert. den. 528 U.S. 964, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999). II. Parties’ Motions A. ERISA Standard of Review ERISA provides Plaintiff with a federal cause of action to recover the benefits she claims are due under the Plan. 29 U.S.C. § 1132(a)(1)(B). The standard of review of a plan administrator’s denial of ERISA benefits depends upon the terms of the benefit plan. Absent contrary language in the plan, the denial is reviewed under a de novo standard. See Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). However, if “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan,” an abuse of discretion standard is applied. Id.; Taft v. Equitable Life Assurance Society, 9 F.3d 1469, 1471 (9th Cir.1993). Where discretionary authority has been granted to the plan administrator, the Ninth Circuit has applied an “arbitrary and capricious” standard in determining whether the plan administrator abused its discretion. McKenzie v. General Telephone Co. of California, 41 F.3d 1310, 1314 (9th Cir.1994); Taft, 9 F.3d at 1471, n. 2 (use of the term “arbitrary and capricious” versus “abuse of discretion” is a “distinction without a difference”). Here, the plan grants Liberty discretion to interpret the policy, as well as the power to decide eligibility for benefits. Because the plan grants Liberty this discretionary authority, an arbitrary and capricious or abuse of discretion standard should be applied, unless a conflict of interest triggers the less deferential standard. See, e.g., Taft, 9 F.3d at 1471. If “a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a factor in determining whether there is an abuse of discretion.” Firestone, 489 U.S. at 115, 109 S.Ct. 948." }, { "docid": "16726110", "title": "", "text": "that he was not totally disabled. Ingram brought suit under ERISA. See 29 U.S.C. § 1132(a)(1)(B). The district court granted summary judgment against Ingram, from which he now appeals. We review a district court’s grant of summary judgment de novo. Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). II Depending upon the language of an ERISA plan, a district court reviews a plan administrator’s decision to deny benefits either de novo or for abuse of discretion. The de novo standard is appropriate “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). As we recently stated in an en banc decision, “[A]n administrator ha[s] discretion only where discretion [is] ‘unambiguously retained.’ ” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999) (en banc) (quoting Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992)). “[T]he default is that the administrator has no discretion, and the administrator has to show that the plan gives it discretionary authority in order to get any judicial deference to its decision.” Id. at 1089. We therefore examine the text of MetLife’s disability plan to determine whether it “unambiguously” states that MetLife has “discretionary authority” in making benefits decisions. The plan states, in relevant part: The carrier solely is responsible for providing the benefits under this Plan.... The carrier will make all decisions on claims and has reserved the right to examine medically an individual for whom claim is made at any time during the period of disability. Accordingly, the management and control of the operation and administration of claim procedures under the Plan, including the review and payment or denial of claims and the provision of full and fair review of claim denial pursuant to Section 503 of the Act, shall be vested in the carrier. We discuss the statements upon which MetLife relies in the order in which they appear. The plan first states that “[t]he carrier" }, { "docid": "9869717", "title": "", "text": "Aetna request an extension of the appeal deadline during this time period due to “special circumstances.” However, on November 25, 2003, a letter was sent to the plaintiff advising that among other things, “voluminous medical records” had been received from Dr. Shim-izu and Dr. Murray on November 7, 2003. This letter also advised Ms. Mitchell that her file had been referred “at this time” for an “independent medical review.” Aet-na advised the plaintiff that the appeal deadline was extended to December 11, 2003. Finally, Aetna again advised the plaintiff that “[a]ny new, relevant information should be submitted as soon as possible.” Plaintiffs file was referred to Dr. Ra-ford, a board certified doctor of vocational medicine. When requesting the medical review of the file, the appeals unit posed the following questions to Dr. Raford: 1. Does objectively validated medical information support the claimant is totally impaired and unable to perform any reasonable occupational duties as of 7/31/03? 2. Does objectively validated medical information support any restrictions or limitations preventing full time work? On December 8, 2003, Dr. Raford reviewed the claim and determined that plaintiff was not totally disabled. Plaintiffs appeal was denied on December 15, 2003. II. Conclusions of Law A. Standard of Review The disability insurance plan at issue in this case is a defined benefit plan subject to the provisions of the Employment Retirement Income Security Act (“ERISA”). 29 U.S.C. §§ 1001 et seq. A denial of ERISA benefits is reviewed de novo unless “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility benefits or construe the terms of the plan.” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Under Firestone, the default presumption is that the administrator has no discretion and must show that the plan confers discretionary authority. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089 (9th Cir.1999) (en banc). If the benefit plan confers discretion on the administrator, a reviewing court must apply an abuse of discretion standard. See Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir.1999);" }, { "docid": "16075135", "title": "", "text": "benefits to an ERISA plan beneficiary. See 29 U.S.C. §§ 1132(a)(1)(B); 1132(e). 2. ERISA benefits determinations are to be reviewed de novo, “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). An ERISA benefits determination under a plan that “unambiguously” confers such discretionary authority shall be reviewed under an abuse of discretion standard. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999). In this case, both the MET Policy and UNUM Policy unambiguously confer discretion to determine eligibility for benefits and interpret plan terms. Therefore, the Court reviews the MET and UNUM denials of benefits under an abuse of discretion standard. II. Mitchell’s Claim With MET A. MET’s Conñict of Interest 3. In Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 967-69 (9th Cir.2006), the Ninth Circuit held that district courts should employ a case-by-case approach to abuse of discretion review in ERISA cases. Id. This approach allows district courts to consider the “kind of inherent conflict that exists when a plan administrator both administers the plan and funds it, as well as other forms of conflict.” Id. at 967. 4. The Ninth Circuit has offered guidance on tailoring review to the particular facts and circumstances of a ERISA administrator’s denial of benefits: The level of skepticism with which a court views a conflicted administrator’s decision may be low if a structural conflict of interest is unaccompanied, for example, by any evidence of malice, of self-dealing, or of a parsimonious claims-granting history. A court may weigh a conflict more heavily if, for example, the administrator provides inconsistent reasons for denial, fails adequately to investigate a claim or ask. plaintiff for necessary evidence, fails to credit claimant’s reliable evidence, or has repeatedly denied benefits to deserving participants by interpreting plan terms incorrectly or by making decisions against the weight of evidence in the record. Id. at 968 (citations omitted). 5. Ultimately, the “district" }, { "docid": "15729063", "title": "", "text": "to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Masson v. New Yorker Magazine, 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991). II. Judicial Review of ERISA Disability Claims ■ The disability insurance plan at issue in this case is a defined benefit plan subject to the provisions of the Employment Retirement Income Security Act (“ERISA”). 29 U.S.C. §§ 1001 et seq. A denial of ERISA benefits is reviewed de novo unless “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility benefits or construe the terms of the plan.” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Under Firestone, the default presumption is that the administrator has no discretion and must show that the plan confers discretionary authority. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089 (9th Cir.1999) (en banc). If the benefit plan confers discretion on the administrator, a reviewing court must apply an abuse of discretion standard. See Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir.1999); McClure v. Life Ins. Co. of North America, 84 F.3d 1129, 1132 (9th Cir.1996). Under the abuse of discretion standard, the court’s review is limited to the administrative record, and the decision of an administrator will not be disturbed unless the court determines that the decision was arbitrary or capricious. See McKenzie v. Gen. Tel. Co. of Cal., 41 F.3d 1310, 1316 (9th Cir.1994); Clark v. Wash. Teamsters Welfare Trust, 8 F.3d 1429, 1431 (9th Cir.1993). “The touchstone of arbitrary and capricious conduct is unreasonableness.” Id. at 1432. In contrast, under the de novo standard, the normal summary judgment standard applies, and the district court may grant summary judgment if there are no genuine issues of material fact in dispute. Tremain v. Bell Ind., 196 F.3d 970, 978 (9th Cir.1999). DISCUSSION Liberty’s disability policy unambiguously confers discretionary authority upon the insurance company to make decisions regarding plan coverage and benefits. See Gallegos Dec., Exh. A, at GBP-021; McGee Dec., Exh." }, { "docid": "14924108", "title": "", "text": "Inc., 833 F.2d 1525, 1531 (11th Cir.1987). If the determination of the case rests on which competing version of the facts or events is true, the case should be submitted to the trier of fact. Id. Discussion A. Standard of Review for ERISA claims As an initial matter, the Court must determine the applicable standard of review to use in assessing the denial of Plaintiffs claims because ERISA does not provide the standard to review decisions of a plan administrator or a fiduciary. Marecek v. BellSouth Telecommunications, 49 F.3d 702, 705 (11th Cir.1995) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). In Firestone Tire & Rubber Company v. Bruch, the Supreme Court of the United States established the standard of review to be used in ERISA cases to benefit determinations made by claims fiduciaries who have discretionary authority under a plan. 489 U.S. 101, 109, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The Court held that “a denial of benefits challenged under Section 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility benefits or to construe the terms of the plan.” Id. at 115, 109 S.Ct. 948. Following this, the Eleventh Circuit, in Buckley v. Metropolitan Life, set forth three standards of review that a court may apply in reviewing a plan administrator’s claims decisions: “(1) de novo where the plan does not grant the administrator discretion; (2) arbitrary and capricious [where] the plan grants the administrator discretion; and (3) heightened arbitrary and capricious where there is a conflict of interests.” 115 F.3d 936, 939 (11th Cir.1997). There is no dispute that Defendant is the claims administrator and the insurer of Plaintiffs policy. Additionally, the plan documents clearly state that NationsBank, and not Defendant, is the plan administrator; however, this fact is not determinative of whether this Court should review Defendant’s denial of Plaintiffs claims de novo. Rather the Court must look at whether either the plan administrator or the plan fiduciary was given" }, { "docid": "21229087", "title": "", "text": "63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Parrino v. FHP, Inc., 146 F.3d 699, 703-04 (9th Cir.1998). Venue in the United States District Court for the Central District of California is invoked pursuant to 29 U.S.C. § 1132(e)(2). The parties do not dispute the facts requisite to federal jurisdiction and venue. II. Standard Of Review A “denial of benefits challenged under 29 U.S.C. § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Where the plan vests such discretionary authority in the administrator or fiduciary, the Court reviews the denial of benefits under the plan for an abuse of discretion. Id. However, in order for the abuse of discretion standard to apply, the Plan must unambiguously grant discretion to the administrator or fiduciary. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089 (9th Cir.1999). In this case, the Plan provides in relevant part that: The Plan administrator and other Plan fiduciaries shall have discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to Plan benefits in accordance with the terms of the Plan. Any interpretation or determination made pursuant to such discretionary authority shall be given full force and effect, unless it can be shown that the interpretation or determination was arbitrary and capricious. (AR 0102). The Court concludes that the foregoing language contained in the LTD Plan unambiguously grants discretion to MetLife. Once the Court concludes that the Plan vests discretionary authority in the administrator or fiduciary, the Court must determine whether the administrator or fiduciary is operating under a conflict of interest. Under the Ninth Circuit’s recent en banc decision in Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (2006) in which the Ninth Circuit overruled Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317 (1995), the “[a]buse of discretion [standard of] review applies" }, { "docid": "22270511", "title": "", "text": "ruling below. In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989), the United States Supreme Court held that “a denial of benefits challenged under [29 U.S.C.] § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” If the administrator or fiduciary is given discretionary powers under the plan, his decisions are reviewed for abuse of discretion and will not be disturbed if they are reasonable. Bruch, 489 U.S. at 111, 115, 109 S.Ct. at 954, 956; Doe v. Group Hospitalization & Medical Services, 3 F.3d 80, 85 (4th Cir.1993). Furthermore, when an administrator or fiduciary with discretion is operating under a conflict of interest such that its decision to award or deny benefits impacts its own financial interests, “that conflict must be weighed as a ‘facto[r] in determining whether there is an abuse of discretion.’” Bruch, 489 U.S. at 115, 109 S.Ct. at 957 (quoting Restatement (Second) of Trusts § 187, cmt. d (1959)); see also Doe, 3 F.3d at 87 (holding that when a conflict of interest exists, “the fiduciary decision will be entitled to some deference, but this deference will be lessened to the degree necessary to neutralize any untoward influence resulting from the conflict”). Appellant contends that the district court failed to apply the correct standard of review in examining CapitalCare’s denial of benefits in this action. He suggests that under Doe the district court should have reviewed CapitalCare’s decision under a lessened deferential standard because Capital-Care both insured and administered the plan and was thus operating under a conflict of interest. Both parties in this case agree that the HMO Agreement gives to CapitalCare, as the plan administrator, discretion to make eligibility determinations so as to trigger an abuse of discretion standard. For example, the Agreement provides, “CapitalCare may adopt reasonable policies, procedures, rules and interpretations to promote the orderly and efficient administration of this agreement.” J.A. at 81 (emphasis" }, { "docid": "5743081", "title": "", "text": "on review shall be furnished in writing and shall include the reasons for the decision with reference, again, to those policy provisions upon which the final decision is based.” The question is whether, in the post-Keamey world, this suffices to confer discretion on Reliance such that judicial review of its discontinuation of benefits should be for abuse of discretion, or de novo. We think the answer must be de novo. It is easy to see why the district court concluded otherwise, for before Kearney we had never said that a clause requiring “satisfactory proof’ was insufficient to confer discretion, or that language to this effect, together with language relating to the claims procedure and determination of continuation or termination of benefits, was insufficient to grant the discretionary authority necessary for invoking an abuse of discretion standard. However, in Kearney, we tightened the reins. First, we reiterated the rule from Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), that “ ‘denial of benefits challenged under [29 U.S.C.] § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.’ ” Kearney, 175 F.3d at 1089 (quoting Firestone, 489 U.S. at 115, 109 S.Ct. 948) (alteration in original). As we explained, “[t]hat means the default is that the administrator has no discretion, and the administrator has to show that the plan gives it discretionary authority in order to get any judicial deference to its decision.” Kearney, 175 F.3d at 1089. The Plan at issue in Kearney stated that Standard, the Plan Administrator, would pay disability benefits “upon receipt of satisfactory written proof that you have become DISABLED.” Standard argued that the word “satisfactory” implied discretion, but we held that it did not because the phrase is ambiguous. “Only by excluding alternative readings as unreasonable could we conclude that the conferral of discretion is unambiguous.” Kearney, 175 F.3d at 1090. Thus, a plan will not sufficiently confer discretion sufficient to invoke" }, { "docid": "21196461", "title": "", "text": "bench trial on the administrative record, the district court concluded that the Plan hadn’t abused its discretion and denied Saffon any relief. Standard of Review 1. We review benefits denials de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits;” if the plan does grant such discretionary authority, we review the administrator’s decision for abuse of discretion. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Here, the Plan’s Summary Plan Description states: In carrying out their respective responsibilities under the Plan, the Plan administrator and other Plan fiduciaries shall have discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to Plan benefits in accordance with the terms of the Plan. Saffon argues that we must review Met-Life’s decision de novo because it is unclear whether the Summary Plan Description’s discretionary clause refers to MetLife. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999) (en banc) (we defer only if the grant of discretionary authority is “unambiguous[ ]”). Saffon sees an ambiguity in the fact that the Summary Plan Description doesn’t refer to MetLife by name; instead, it grants discretionary authority to “the Plan administrator [Wells Fargo] and other Plan fiduciaries.” But it’s perfectly clear that MetLife is included in this grant of discretionary authority because it is one of the “other Plan fiduciaries” mentioned there. A “fiduciary” is an entity with “any discretionary authority” in the “administration of’ an ERISA plan. 29 U.S.C. § 1002(21)(A). See Aetna Health Inc. v. Davila, 542 U.S. 200, 220, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (“When administering employee benefit plans, HMOs must make discretionary decisions regarding eligibility for plan benefits, and, in this regard, must be treated as plan fiduciaries.”). MetLife’s Certificate of Insurance provides that “MetLife in its discretion has authority to interpret the terms, conditions, and provisions of the entire contract.” The Summary Plan Description explains that the Plan “is ... administered by [MetLife].” “To qualify for LTD benefits,” beneficiaries must “[rjeceive approval for" }, { "docid": "21229086", "title": "", "text": "concentration, memory and fund of knowledge orientation.” (AR 331) From his review of her file, Dr. Givens concluded that Plaintiff “does not have significant impairment from a psychiatric condition” that would preclude her from “fulltime work” at her own occupation or another occupation. (Id.) On October 11, 2004, MetLife denied Plaintiffs appeal. (AR 321-28) MetLife informed Plaintiff that its decision to deny Plaintiffs appeal was based on its conclusion that the “medical information on file does not support a condition(s) of such severity that would preclude [Plaintiff] from working beyond February 29, 2004.” (AR 328) Several months later, on April 1, 2005, Plaintiff filed her complaint with this Court seeking review of MetLife’s cancellation of her LTD benefits. Conclusions Of Law I. Jurisdiction And Venue This action involves a claim for long term disability benefits under an employee welfare benefit plan regulated by ERISA. As such, the Court has original jurisdiction over this matter under 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e). See, e.g., Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Parrino v. FHP, Inc., 146 F.3d 699, 703-04 (9th Cir.1998). Venue in the United States District Court for the Central District of California is invoked pursuant to 29 U.S.C. § 1132(e)(2). The parties do not dispute the facts requisite to federal jurisdiction and venue. II. Standard Of Review A “denial of benefits challenged under 29 U.S.C. § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Where the plan vests such discretionary authority in the administrator or fiduciary, the Court reviews the denial of benefits under the plan for an abuse of discretion. Id. However, in order for the abuse of discretion standard to apply, the Plan must unambiguously grant discretion to the administrator or fiduciary. Kearney v. Standard Ins. Co., 175 F.3d 1084," }, { "docid": "7787314", "title": "", "text": "that under any standard, it should prevail. II. DISCUSSION The Court reviews de novo the district court’s grant of summary judgment, viewing the record in the light most favorable to the nonmoving party. Woo, 144 F.3d at 1160. Similarly, this Court reviews de novo the district court’s determination of the appropriate standard of review under ERISA. Id. The Court finds that the district- court properly employed the arbitrary and capricious standard of review in granting summary judgment, but improperly used a sliding scale standard of review in considering the so-called “Motion for New Trial.” The Supreme Court enunciated the appropriate standard of judicial review of benefit determinations by fiduciaries or plan administrators in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111, 109 S.Ct. 948, 954, 103 L.Ed.2d 80 (1989). Using principles. of trust law, the Court held that a denial of benefits challenged under § 1132(a)(1)(B) should be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan, in which case a deferential standard is to be used. Firestone, 489 U.S. at 115, 109 S.Ct. at 956. The parties agree that the Plan grants discretionary authority to UNUM to make benefits determinations and to interpret the policy. Consequently, the Eighth Circuit uses an abuse of discretion standard. Layes v. Mead Corp., 132 F.3d 1246, 1250 (8th Cir.1998). When the benefit plan, however, grants discretion to an administrator or fiduciary operating under a conflict of interest, “that conflict must be weighed as a ‘facto[r] in determining whether there is an abuse of discretion.’ ” Firestone, 489 U.S. at 115, 109 S.Ct. at 956 (quoting Restatement (Second) of Torts § 187 cmt. d (1959)). The parties additionally agree that the insurer is also the plan administrator. Thus, UNUM will have a direct financial benefit when it denies a claim. Such a conflict of interest may trigger a less deferential standard of review. Woo, 144 F.3d at 1161; see also Bedrick v. Travelers Ins. Co., 93 F.3d 149, 152 (4th" }, { "docid": "14015715", "title": "", "text": "receive Social Security Disability benefits. Docket No. 72 (Moody Dec.) ¶ 2. CONCLUSIONS OF LAW I.Standard of Review 1. ERISA provides for judicial review of a decision to deny benefits to an ERISA plan beneficiary. See 29 U.S.C. § 1132(a)(1)(B). 2. ERISA creates federal court jurisdiction to hear such a claim. See 29 U.S.C. § 1132(e). 3. In determining the appropriate standard of review, a court should be guided by principles of trust law, analogizing a plan administrator to the trustee of a common law trust. A benefit determination should be considered to be a fiduciary act, i.e., an act in which the administrator owes a special duty of loyalty to the plan beneficiaries. Metropolitan Life Ins. Co. v. Glenn, — U.S.-,-, 128 S.Ct. 2343, 2347, 171 L.Ed.2d 299 (2008), quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111-113, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). 4. ERISA benefits determinations are to be reviewed de novo, unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Glenn at 2348; see also Firestone at 115, 109 S.Ct. 948. 5. Where an administrator has retained discretionary authority, “trust principles make a deferential standard of review [i.e., review for abuse of discretion] appropriate.” Glenn at 2348, quoting Firestone at 111, 109 S.Ct. 948. The court must evaluate all the facts and circumstances to make something “akin to a credibility determination about the insurance company’s or plan administrator’s reason for denying coverage under a particular plan and a particular set of medical and other records.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 969 (9th Cir.2006). 6. An administrator has discretion only where it is “unambiguously retained.” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999), quoting Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992). In this case, the parties agree that defendant retained such discretion. See P-025 (policy provision regarding “interpretation of the policy”). 7. Where a benefit plan gives discretion to an administrator who is operating under a" }, { "docid": "9869718", "title": "", "text": "Dr. Raford reviewed the claim and determined that plaintiff was not totally disabled. Plaintiffs appeal was denied on December 15, 2003. II. Conclusions of Law A. Standard of Review The disability insurance plan at issue in this case is a defined benefit plan subject to the provisions of the Employment Retirement Income Security Act (“ERISA”). 29 U.S.C. §§ 1001 et seq. A denial of ERISA benefits is reviewed de novo unless “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility benefits or construe the terms of the plan.” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Under Firestone, the default presumption is that the administrator has no discretion and must show that the plan confers discretionary authority. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089 (9th Cir.1999) (en banc). If the benefit plan confers discretion on the administrator, a reviewing court must apply an abuse of discretion standard. See Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir.1999); McClure v. Life Ins. Co. of North America, 84 F.3d 1129, 1132 (9th Cir.1996). The Viacom LTD Plan at issue in this cases contains the following grant of discretion: For the purpose of section 503 of Title I of the Employee Retirement Income Security Act of 1974, as amended (ERISA), Aetna is a fiduciary with complete authority to review all denied claims for benefits under this policy ... In exercising such fiduciary responsibility, Aetna shall have discretionary authority to: determine whether and to what extent employees and beneficiaries are entitled to benefits; and construe any disputed or doubtful terms of this policy. Aetna shall be deemed to have properly exercised such authority unless Aetna abuses its discretion by acting arbitrarily and capriciously. This explicit grant of discretion would, therefore, make the Court’s review of the decision to deny benefits subject to an abuse of discretions standard, and the Court would reverse the decision only if the administrator acted arbitrarily and capriciously. The plaintiff argues, however, that Aet-na is not entitled to an abuse of discretion" }, { "docid": "20163493", "title": "", "text": "only “to give the Plan Administrator the opportunity to make factual findings supported in detail” (Aplt. Br. at 25) conflicts with the plain language of the remand order, and, importantly, the district court did not interpret its own order in such a limited fashion when the case returned to it — indeed, it considered this “new” argument in its review of the administrator’s decision. A. Standard of Review “We review summary judgment orders de novo.” Weber v. GE Group Life Assurance Co., 541 F.3d 1002, 1010 (10th Cir.2008). The Supreme Court has provided that the proper standard of review when a denial of benefits is challenged under 29 U.S.C. § 1132(a)(1)(B) depends largely upon whether “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Where a plan grants the administrator or fiduciary discretionary authority to determine eligibility for benefits, “we employ a deferential standard of review, asking only whether the denial of benefits was arbitrary and capricious.” Weber, 541 F.3d at 1010 (citation and quotation omitted). However, “[i]f a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a factor in determining whether there is an abuse of discretion.” Metro. Life Ins. Co. v. Glenn, — U.S. -, 128 S.Ct. 2343, 2348, 171 L.Ed.2d 299 (2008) (internal quotation marks, emphasis omitted) (quoting Firestone, 489 U.S. at 115, 109 S.Ct. 948). “To incorporate this factor, we have crafted a sliding scale approach where the reviewing court will always apply an arbitrary and capricious standard, but [will] decrease the level of deference given ... in proportion to the seriousness of the conflict.” Weber, 541 F.3d at 1010 (internal citations and quotations omitted). Here, the Plan documents explicitly state that the Plan Administrator “shall be vested with full and final discretionary authority to determine eligibility for benefits, [and] to construe and interpret the terms of the core" }, { "docid": "526521", "title": "", "text": "benefits under an employee welfare benefit plan regulated by ERISA. As such, the Court has original jurisdiction over this matter under 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e). See, e.g., Metro politan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Parrino v. FHP, Inc., 146 F.3d 699, 703-04 (9th Cir.1998). Venue in the United States District Court for the Central District of California is invoked pursuant to 29 U.S.C. § 1132(e)(2). The parties do not dispute the facts requisite to federal jurisdiction and venue. II. Standard Of Review A “denial of benefits challenged under 29 U.S.C. § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Where the plan vests such discretionary authority in the administrator or fiduciary, the Court reviews the denial of benefits under the plan for an abuse of discretion. Id. However, in order for the abuse of discretion standard to apply, the Plan must unambiguously grant discretion to the administrator or fiduciary. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089 (9th Cir.1999). In addition, the abuse of discretion standard applies when discretionary authority has been delegated to a third party if: (1) the plan vests discretionary authority in the administrator or fiduciary; and (2) “a named fiduciary properly designates another fiduciary, delegating its discretionary authority ...” Madden v. ITT Long Term Disability Plan for Salaried Employees, 914 F.2d 1279 (9th Cir.1990) (abuse of discretion standard applied because plan gave discretionary authority to plan administrator and fiduciary who delegated its authority to a third party as required under the plan); see also, 29 U.S.C. § 1105(c)(1). In this case, it is undisputed that the Plan unambiguously grants AT & T discretionary authority as the Plan Sponsor, the Plan Administrator, and a named fiduciary. It also is undisputed that the Plan allows AT &" }, { "docid": "22175411", "title": "", "text": "after she was terminated and (b) finding that her impairment did not prevent her from performing the duties of her occupation with another employer. The district court granted summary judgment in favor of the insurer. We affirm. Standard of Review Standard Insurance Company (“Standard”) claims that the decision of the plan administrator should be reviewed for an abuse of discretion. Bendixen asserts that the plan administrator has a serious conflict of interest that warrants less deferential scrutiny by the district court. The Supreme Court held in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), that when an ERISA plan vests the plan administrator or fiduciary with discretionary authority to determine benefit eligibility, the district court ordinarily reviews the decision to grant or deny benefits for an abuse of discretion. This court recently clarified its interpretation of Firestone in Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir.1999) (en banc). In Kearney, this court sitting en banc reiterated the Supreme Court’s holding in Firestone, stating: “denial of benefits challenged under [29 U.S.C.] § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone, 489 U.S. at 115, 109 S.Ct. 948. That means the default is that the administrator has no discretion, and the administrator has to show that the plan gives it discretionary authority in order to get any judicial deference to its decision. Kearney, at 1089 (emphasis added). The court in Kearney held that the policy language providing that Standard would pay disability benefits “upon receipt of satisfactory written proof that you have become DISABLED” was ambiguous and, therefore, should be reviewed de novo. Id. at 1088. The majority of the en banc court then determined that there was a genuine dispute of material fact and on that basis reversed the grant of summary judgment rendered by the district court. In so doing, the court remanded the case for a trial de novo in" }, { "docid": "23083087", "title": "", "text": "§ 1132(e)(1), and we have jurisdiction pursuant to 28 U.S.C. § 1291. II. In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court held that, when evaluating challenges to denials of benefits in actions brought under 29 U.S.C. § 1132(a)(1)(B), district courts are to review the plan administrator’s decision under a de novo standard of review, unless the plan grants discretionary authority to the administrator or fiduciary to determine eligibility for benefits or interpret the terms of the plan. The Court recognized that “if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a factor in determining whether there is an abuse of discretion.” Firestone, 489 U.S. at 115, 109 S.Ct. 948 (internal quotation omitted). Prior to the Supreme Court’s recent decision in Glenn, we interpreted this language in Firestone to mean that courts should consider conflicts of interest affecting plan administration when formulating the standard of review. See Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377, 392 (3d Cir.2000). Accordingly, we adjusted the standard of review using a “sliding scale” in which the level of deference we accorded to a plan administrator would change depending on the conflict or conflicts of interest affecting plan administration. Id. In Glenn, the Supreme Court interpreted the relevant language in Firestone in a different way, holding that courts should continue to apply a deferential abuse-of-discretion standard of review in cases where a conflict of interest is present, but that courts should take the conflict into account not in formulating the standard of review, but in determining whether the administrator or fiduciary abused its discretion: We do not believe that Firestone’s statement implies a change in the standard of review, say, from deferential to de novo review. Trust law continues to apply a deferential standard of review to the discretionary decisionmaking of a conflicted trustee, while at the same time requiring the reviewing judge to take account of the conflict when determining whether the trustee, substantively" }, { "docid": "22270510", "title": "", "text": "the CapitalCare HMO Agreement. Also, Philip contends that the district eourt erred in determining that Capi-talCare substantially complied with the procedural requirements of ERISA § 503, 29 U.S.C. § 1133, in providing written notice of the benefit denial and affording a reasonable opportunity for a full and fair review of his claim. II. In Sheppard & Enoch Pratt Hosp. v. Travelers Ins. Co., 32 F.3d 120, 123 (4th Cir.1994), a recent decision regarding health benefits under ERISA, this court stated, “In considering a grant of summary judgment, we, of course, review the district court’s decision de novo, employing the same standards applied by the district court.” In examining the propriety of the district court’s ruling in this case, we must first analyze two threshold matters: (1) the appropriate standard for the district court’s review of the plan administrator’s denial of benefits; and (2) the appropriate scope of evidence that may be reviewed in determining whether the plan administrator’s decision was proper. These issues are somewhat intertwined and set the context for reviewing the district court’s ruling below. In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989), the United States Supreme Court held that “a denial of benefits challenged under [29 U.S.C.] § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” If the administrator or fiduciary is given discretionary powers under the plan, his decisions are reviewed for abuse of discretion and will not be disturbed if they are reasonable. Bruch, 489 U.S. at 111, 115, 109 S.Ct. at 954, 956; Doe v. Group Hospitalization & Medical Services, 3 F.3d 80, 85 (4th Cir.1993). Furthermore, when an administrator or fiduciary with discretion is operating under a conflict of interest such that its decision to award or deny benefits impacts its own financial interests, “that conflict must be weighed as a ‘facto[r] in determining whether there is an abuse of discretion.’” Bruch, 489 U.S. at" }, { "docid": "7614046", "title": "", "text": "income. On the other hand, defendants contend that the Other Income Benefits under the plan include workers’ compensation benefits. Defendants have counterclaimed asserting causes of action for breach of contract, money due and owing, and declaratory relief. DISCUSSION I. Standard of Review Defendants contend that the Court must review its disability determination under an abuse of discretion standard, while plaintiff argues that defendant Hartford has a conflict of interest that warrants less deferential review by the Court. “[A] denial of benefits challenged under [ERISA] § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir.1999). When the plan confers discretion on the plan administrator to determine eligibility for benefits, courts review the denial of benefits for abuse of discretion. Id. The “default is that the administrator has no discretion, and the administrator has to show that the plan gives it discretionary authority in order to get any judicial deference to its decision.” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089 (9th Cir.1999) (en banc). The ERISA plan at issue here unambiguously provides Hartford with discretion to determine whether a claimant is entitled to benefits. Under the plan, Hartford has “full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the Group Insurance Policy.” AR 723. Plaintiff does not contend that the policy does not confer discretionary authority upon Hartford; instead, plaintiff argues that de novo review should apply because Hartford has an inherent conflict of interest. The Ninth Circuit has held that the abuse of discretion standard of review can be “heightened” by a plan administrator’s conflict of interest. See Atwood v. Newmont Gold Co., 45 F.3d 1317, 1322 (9th Cir.1995). There is an apparent conflict of interest where a long-term disability policy is both funded and" } ]

[ { "docid": "21408429", "title": "", "text": "found that Local 1513 fairly represented all of its members and that it did not engage in arbitrary or discriminatory conduct towards Martin. These findings put Local 1513 in compliance with the mandate of Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), on the duty of fair representation. As discussed earlier, the grievances Martin brought were handled properly by Local 1513. Although Martin sets out a list of some thirty alleged unfair representation violations involving other women members, she has failed to show that the Union unfairly represented her, personally, in any way. The mishandling of grievances of other members of Local 1513, if they occurred, do not establish that the Union unfairly represented her. On the basis of the record as a whole, we feel the district court’s dismissal of the unfair representation claim is not clearly erroneous. III. RETALIATION Martin’s final claim was that because she filed a complaint against Local 1513 with the International Union and because she filed a civil rights complaint with the Iowa Civil Rights Commission against the Union, Local 1513 retaliated by failing to adequately represent her and other women. The district court rejected this claim. To establish a prima facie case of discriminatory retaliation, Martin must establish: “(1) that [she] filed a charge of unlawful discrimination, (2) that [Local 1513] took adverse action against [her], and (3) that the adverse action was linked to the filing of the charge of unlawful discrimination.” Kellner v. General Refractories Co., 631 F.Supp. 939, 944 (N.D.Ind.1986). See also Gunther v. County of Washington, 623 F.2d 1303 (9th Cir.1979), aff'd, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). Although Martin meets the first element of Kellner, the district court found that Local 1513 did not unlawfully retaliate against her for anything she did. We cannot say this finding is clearly erroneous. As such, Martin cannot prove the second and third elements needed under Kellner to show retaliation. IV. CONCLUSION We conclude that the trial court’s findings of fact and conclusions of law were not clearly erroneous. The dismissal of Martin’s" } ]

[ { "docid": "12242113", "title": "", "text": "Plaintiff further alleges that Monarch made no investigation into or attempt to remedy her situation. Even if one assumes, as Monarch suggests, that Monarch’s removal of Plaintiff from her position on April 8, 1996, constituted adequate or appropriate remedial action, that response occurred six-to-eight weeks after Plaintiffs report. This court fails to see how inaction on Monarch’s part for a period of six-to-eight weeks can be “prompt” or “immediate” as a matter of law. Cf. Jarman, 950 F.Supp. at 1379 (holding that a “five-month delay is clearly long enough to prevent [the defendant’s] response from being characterized as immediate”). Accordingly, because Plaintiff has alleged sufficient facts to show that Monarch was her employer and that Monarch may be liable for the actions of Spence, the court will deny Monarch’s motion to dismiss Plaintiffs Title VII claim for intentional discrimination on the basis of sex. 2. Retaliation for Plaintiffs opposition to sexual harassment To establish a prima facie case that an employer has engaged in a retaliatory action in \"violation of Title VII, a plaintiff must show that (1) she engaged in a protected activity; (2) her employer took an adverse employment action against her; and (3) a sufficient causal connection exists between her protected activity and her employer’s adverse employment action. Ross v. Communications Satellite Corp., 759 F.2d 355 (4th Cir.1985). Even if the court assumes that there was a causal connection between Plaintiffs complaints of sexual harassment to her superiors at Monarch and Mechanics and her removal from her temporary assignment at Mechanics, Plaintiff has still failed to allege facts which would suggest that Monarch took an adverse employment action against her. Inquiries into whether an employment action adversely affects an employee have “consistently focused on the question of whether there has been discrimination in what could be characterized as ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating.” Page v. Bolger, 645 F.2d 227, 233 (4th Cir.) (discussing proper focus of a disparate treatment theory inquiry), cert. denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206 (1981); see also Hopkins v. Baltimore Gas &" }, { "docid": "21750547", "title": "", "text": "that are unsupported by pertinent authority, are waived. Clay v. Holy Cross Hospital, 253 F.3d 1000, 1002 n. 1 (7th Cir.2001). Lastly, Wells argues that the trial court erred in granting Unisource summary judgment on her retaliation claim. In order for a plaintiff to establish a prima facie case of retaliation under Title VII, Wells was required to establish that: 1) she engaged in a statutorily protected activity; 2) she suffered an adverse employment action; and 3) there is a causal link between the protected activity and the adverse action. Velasco, 246 F.3d at 1017 n. 6. Wells has failed to meet the third prong. In order to establish a causal link between protected activity and an adverse employment action, a plaintiff must demonstrate that the employer would not have taken the alleged adverse action “but for” the plaintiffs protected activity. Rizzo v. Sheahan, 266 F.3d 705, 715 (7th Cir.2001); Johnson v. Nordstrom, Inc., 260 F.3d 727, 732 (7th Cir.2001). Wells has failed to even attempt to demonstrate the causal link between her 1998 filing of a discrimination claim and the 2000 plan to restructure the credit department. Indeed, her cursory argument suggests only that her credit administrator position was the only position terminated, an assertion directly contrary to the record before us. Wells suggests that another circuit has found that a retaliation claim was established despite a fourteen-month time lapse between expression and retaliation. See Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th Cir.1992). But, in Shirley, the plaintiffs direct supervisor began to harass the plaintiff immediately after the filing of her EEOC complaint, “mention[ing] her EEOC complaint to her at least twice a week and ‘harassing] [her] to death about it.’ ” Id. at 43. The facts of this case are not as compelling, as the plaintiff-appellant Wells makes no allegation that any supervisor ever mentioned her 1998 discrimination charge, much less “harassed” her about it. Even were we to find this precedent compelling, it stands only for the proposition that Wells might have been allowed to offer evidence that her expression caused the adverse employment action'" }, { "docid": "16479633", "title": "", "text": "determine the appropriate standard for a school district’s imputed liability under Title IX for a teacher’s hostile environment sexual harassment of a student. Id. at 467. Borrowing what we believed to be the appropriate institutional liability standards from Title YII cases dealing with hostile environment sexual harassment, we used the knew or should have known language. We stated: The Supreme Court in Meritor Savings declined to set out a generally applicable standard of liability for employers under Title VII. Instead, the Court suggested that common law agency principles should guide courts in determining employer liability on a case-by-case basis. For example, when a supervisor uses the power delegated specifically to him by his employer to discriminate on the basis of sex, that employee’s actions should be imputed to the employer. On the other hand, in a hostile environment sexual harassment ease, the usual basis for a finding of agency will often disappear. In such cases, the em/ployer should not be held liable unless the employer itself has engaged in some degree of culpable behavior. For example, the employer could be held liable if it knew or should have known of the harassment and failed to take appropriate remedial action. Id, at 469 (citations and quotations omitted) (emphasis added). Therefore, we find that the district court abused its discretion in not instructing the jury on the knew or should have known employer liability standard. Consequently, we reverse and remand for a new trial on this issue. On retrial, the jury may well reach the same verdict, but must do so after being instructed on the appropriate liability standards. B. Retaliation Claim To prove unlawful retaliation, Davis must show that she complained of discrimination, the City took adverse action against her, and the adverse action was causally related to her complaint. Marzec v. Marsh, 990 F.2d 393, 396 (8th Cir.1993). At trial, Davis argued that her previous position as Deputy Clerk was eliminated, and her transfer to the less desirable property officer position was effectuated, in retaliation for filing her complaint about Gross. The jury agreed and awarded sizable damages. On appeal," }, { "docid": "22236901", "title": "", "text": "male employee. Our review of the record, moreover, discloses no evidence that Flagship had a duty or a legitimate reason to consider Jones for another position within the company. Consequently, we affirm the district court’s ruling that Jones failed to make out a discrimination in promotion claim under Title VII. III. Retaliation Jones and the EEOC argue that the district court erred in concluding that Jones had failed to make out a prima facie case of retaliation under § 704(a) of Title VII. A plaintiff establishes a prima facie case of retaliation by showing (1) that she engaged in activity protected by Title VII; (2) that an adverse employment action occurred; and (3) that there was a causal connection between the participation in the protected activity and the adverse employment decision. Irby v. Sullivan, 737 F.2d 1418, 1426 (5th Cir.1984); McMillan v. Rust College, Inc., 710 F.2d 1112,1116 (5th Cir.1983). The district court found that “Jones was clearly engaging in protected activity when she filed a charge of discrimination with the EEOC [and that] [h]er subsequent suspension and termination were adverse employment actions.” The court further found, however, that Flagship’s actions were taken, in part, as a result of Jones’ solicitation of Patricia Love, a female coworker: “the evidence did establish that Jones gave aid and comfort, if not outright encouragement, to Pat Love to pursue her grievances against the company, at a time when Jones’ duty was to discourage and defend such claims____ The court is persuaded, therefore, that Flagship had reasonable grounds, or in good faith thought it did ... for suspending and later terminating Jones.” The court ruled that, as a consequence, Jones failed to establish the causation link between the charges and Flagship’s actions, “i.e., that absent retaliation her employment would have continued.” We conclude that Jones did meet her prima facie burden of showing that “but for” her filing of charges with the EEOC she would not have been suspended and terminated of her employment. We conclude, however, under the McDonnell— Burdine allocation of burdens and order of presentation of proof in a Title VII" }, { "docid": "23521261", "title": "", "text": "summary judgment against Smith on her second claim, that she was retaliated against for having complained about sexual harassment. To succeed, Smith must show that she com plained of discrimination, that the University took adverse action against her, and that this adverse action was causally related to her complaint. E.g., Marzec v. Marsh, 990 F.2d 393, 396 (8th Cir.1993). There is no question that Smith complained of discrimination, and a material issue of fact exists as to whether the Hospital took action against her, if, as she alleges, Schweiss commented negatively about her to prospective employers. We think a factual issue also exists as to whether there is a causal connection between the two events. Although the District Court held, and the University argues, that Title VII does not provide a cause of action for retaliation that took place after employment has concluded, the Supreme Court has now held that Title VII’s protections from retaliation extend to former employees, Robinson v. Shell Oil Co., — U.S. -, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997), and Smith may therefore recover for retaliation taken after her residency ended. The District Court held that too much time elapsed between Smith’s complaint and the alleged retaliation to demonstrate the requisite causal connection. Smith complained in November of 1993. The University spoke with Schweiss in March 1994 to tell him to stop his harassment. Smith presented evidence that Schweiss commented negatively about her in September and October 1994 to her prospective employers, and thereby caused them not to hire her. Schweiss’s motivation for commenting negatively upon Smith is not clear from the evidence. He could have done it because she complained of his harassment, because she was female, or because he believed she had only the qualifications he stated. Summary judgment here is particularly inappropriate, given that Smith’s ease will likely rely on inferences, rather than direct evidence, of Sehweiss’s motivation. See Crawford, supra, 37 F.3d at 1341. The passage of time may simply reflect that Schweiss no longer had an opportunity to retaliate against Smith at the Hospital because she had concluded her residency." }, { "docid": "6503752", "title": "", "text": "established rules of relocation based on junior rank and without regard to performance evaluations. Furthermore, the City competently established that the duties about which Sanders complained fell squarely within the responsibilities of employees in her civil service category. Viewing all of the evidence as a whole, the Court finds that any reasonable jury could have concluded that Sanders failed to establish an adverse employment action within the meaning of Title VII. In addition, because Sanders’s evidence of any racial animus was so lacking in substance, a jury could have found that the City’s actions did not occur under circumstances giving rise to an inference of discrimination. Therefore, a reasonable jury could have concluded that Sanders failed to establish a prima facie case of discrimination in the terms and conditions of her employment. For these reasons, Sanders’s motion for judgment as a matter of law on her claim of employment discrimination is denied. B. UNLAWFUL RETALIATION Sanders also claimed that the City retaliated against her in violation of Title VII. In particular, Sanders alleges that the act of placing an addendum to her 1993 performance evaluation and her subsequent transfer, in conjunction with the accompanying changes in the work environment and her job responsibilities, constitute acts of retaliation. To establish a prima facie case of retaliation in violation of Title VII, Sanders must show that: (1) she participated in an activity protected under Title VII; (2) the City was aware of her participation in the protected activity; (3) the City took adverse action against plaintiff based on her protected activity; and (4) there was a causal connection between the protected activity and the adverse action taken by the employer. Adeniji v. Administration for Children Services, New York City, 43 F.Supp.2d 407, 428 (S.D.N.Y.1999) (citations omitted). There was no dispute at trial that Sanders was engaged in a protected activity when she filed a complaint of racial and gender discrimination with the HRA Equal Employment Office and that the City was aware of her complaint. Sanders’s claim, however, fails in light of the third and fourth elements of a retaliation claim. As" }, { "docid": "16479634", "title": "", "text": "example, the employer could be held liable if it knew or should have known of the harassment and failed to take appropriate remedial action. Id, at 469 (citations and quotations omitted) (emphasis added). Therefore, we find that the district court abused its discretion in not instructing the jury on the knew or should have known employer liability standard. Consequently, we reverse and remand for a new trial on this issue. On retrial, the jury may well reach the same verdict, but must do so after being instructed on the appropriate liability standards. B. Retaliation Claim To prove unlawful retaliation, Davis must show that she complained of discrimination, the City took adverse action against her, and the adverse action was causally related to her complaint. Marzec v. Marsh, 990 F.2d 393, 396 (8th Cir.1993). At trial, Davis argued that her previous position as Deputy Clerk was eliminated, and her transfer to the less desirable property officer position was effectuated, in retaliation for filing her complaint about Gross. The jury agreed and awarded sizable damages. On appeal, the City argues that Davis’s transfer was not sufficiently adverse to support the jury’s verdict. On review of the jury’s verdict, we view the evidence in the light most favorable to the prevailing party. Elliott v. Byers, 975 F.2d 1375, 1376 (8th Cir.1992). Applying this standard, we find that Davis’s transfer was sufficiently adverse to support the jury’s verdict on the retaliation claim. The City points to Davis’s salary increase as evidence that the job transfer was not adverse. The jury apparently put more weight on Davis’s evidence that the new position lacked supervisory status, had fewer opportunities for salary increases, and offered Davis little opportunity for advancement. The jury was free to credit this evidence and we will not disturb its verdict. We have considered the remainder of the City’s arguments and find them to be without merit. III. CONCLUSION Because the district court erred in instructing the jury on Davis’s hostile environment sexual harassment claim, we reverse and remand that claim for a new trial. Finding no error in the jury’s verdict for" }, { "docid": "6503753", "title": "", "text": "act of placing an addendum to her 1993 performance evaluation and her subsequent transfer, in conjunction with the accompanying changes in the work environment and her job responsibilities, constitute acts of retaliation. To establish a prima facie case of retaliation in violation of Title VII, Sanders must show that: (1) she participated in an activity protected under Title VII; (2) the City was aware of her participation in the protected activity; (3) the City took adverse action against plaintiff based on her protected activity; and (4) there was a causal connection between the protected activity and the adverse action taken by the employer. Adeniji v. Administration for Children Services, New York City, 43 F.Supp.2d 407, 428 (S.D.N.Y.1999) (citations omitted). There was no dispute at trial that Sanders was engaged in a protected activity when she filed a complaint of racial and gender discrimination with the HRA Equal Employment Office and that the City was aware of her complaint. Sanders’s claim, however, fails in light of the third and fourth elements of a retaliation claim. As the Court noted above, a reasonable jury could have concluded that the mere act of placing an addendum on Sanders’s performance evaluation was not an adverse action, especially in light of the testimony that the addendum at issue was expunged. Furthermore, the City presented credible evidence that the only reason for Sanders’s transfer was that the City was downsizing its civil service ranks generally and in the process of phasing out the unit to which Sanders was assigned. Sanders’s transfer took place pursuant to a set of standard, non-discriminatory rules governing transfers in those circumstances. Therefore, a reasonable jury could also have concluded that Sanders had failed to establish any adverse employment action and any causal connection between the filing of her discrimination complaint and her transfer. For these reasons, the Court found no reason to take this factual inquiry away from the jury and finds no grounds to depart from the jury’s verdict now. Sanders’s motion for judgment as a matter of law on her claim of unlawful retaliation is denied. C. DISPARATE TREATMENT" }, { "docid": "23521260", "title": "", "text": "it not “proper” for some reason (such as, as she notes, because Smith’s residency ended in June). The University may offer a justification for the time it took to conclude its response to Smith’s charges (such as the need to interview many witnesses, or that the pertinent investigators were on vacation). These are questions of fact that should be addressed to a jury. Smith also contends that the University’s response was inadequate because it was not “reasonably calculated to end the harassment.” Kopp, supra, 13 F.3d at 269. The Dean told Schweiss to monitor himself and the Department and report back on progress just before Smith ended her residency. Smith’s allegations were that Schweiss himself was the principal malefactor in the Department. Placing the alleged harasser in charge of stopping the harassment may well have been inadequate, especially if, as Smith alleges, the harassment did not stop and Schweiss subsequently provided negative references to Smith’s potential employers. This, like promptness, is a factual dispute to be resolved by a jury. III. The District Court granted summary judgment against Smith on her second claim, that she was retaliated against for having complained about sexual harassment. To succeed, Smith must show that she com plained of discrimination, that the University took adverse action against her, and that this adverse action was causally related to her complaint. E.g., Marzec v. Marsh, 990 F.2d 393, 396 (8th Cir.1993). There is no question that Smith complained of discrimination, and a material issue of fact exists as to whether the Hospital took action against her, if, as she alleges, Schweiss commented negatively about her to prospective employers. We think a factual issue also exists as to whether there is a causal connection between the two events. Although the District Court held, and the University argues, that Title VII does not provide a cause of action for retaliation that took place after employment has concluded, the Supreme Court has now held that Title VII’s protections from retaliation extend to former employees, Robinson v. Shell Oil Co., — U.S. -, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997), and" }, { "docid": "23294279", "title": "", "text": "non-discriminatory reason for its actions. See Wallis, 26 F.3d at 889; see also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-256, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1980) (explaining shifting burdens of production of evidence in cases involving violations of Title VII). In order to survive summary judgment, plaintiff must then show that defendant’s reason was merely a pretext. Wallis, 26 F.3d at 889. Assuming arguendo that Tarin made a prima facie showing of discrimination under McDonnell Douglas — i.e., she belongs to a protected minority, applied for the position of Program Specialist, was qualified for the promotion, and the County hired other candidates with comparable qualifications — she failed to show that the County’s reasons for not promoting her were based on race. We accept that she was discriminated against, but the record supports the conclusion that such discrimination was based solely on her military service. The record is replete with her supervisor’s indignation at her for applying for promotion immediately upon return from military service and permitted personal leave. Additionally, the department had minority employees and two of the three promotions Tarin challenges were filled by minorities. There simply is nothing in the record to suggest animus on account of race. We therefore affirm the district court’s dismissal of all claims of racial discrimination based on Title VII, 42 U.S.C. § 1981, and FEHA. B. Retaliation Tarin alleges that Defendants took several courses of action in direct retaliation against her for filing administrative complaints. She alleged that she: 1) was not allowed to telecommute in the same manner as her coworkers; 2) received unfavorable performance ratings, 3) was denied the opportunity to re-interview for promotions, and 4) was denied two promotional opportunities. To establish a prima facie case of retaliation under Title VII, “[t]he plaintiff must show (1) that she was engaging in a protected activity, (2) that she suffered an adverse employment decision, and (3) that there was a causal link between the protected activity and the adverse employment decision.” E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir.1989). Once the employee" }, { "docid": "4353561", "title": "", "text": "testified that she was aware of Rice’s policies prohibiting discrimination and harassment and utilized them to complain about Hoffman. Bocchichio promptly and appropriately responded to Johnson’s complaints. Johnson cannot meet her burden of establishing a basis for employer liability against Rice. Likewise, and as was previously discussed in the Court’s earlier Order, Johnson cannot establish a prima facie case for retaliation. To establish a prima facie case, she must show: (1) she engaged in protected activity; (2) an adverse employment action; and (3) a causal link between the protected activity and the adverse action. See Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir.1997). Johnson fails to show any adverse employment action on the part of Hoffman or Bocchichio which resulted in “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). The Eleventh Circuit has ruled that a change in assignment or duties with no loss of pay, benefits, or title, such as what allegedly occurred in the case at bar, is simply not an adverse employment action. See Gupta v. Florida Board of Regents, 212 F.3d 571, 587 (11th Cir.2000), cert. denied, 531 U.S. 1076, 121 S.Ct. 772, 148 L.Ed.2d 671 (2001). Johnson also fails to show a causal link between the alleged protected activity and the alleged retaliation. She admits that her only evidence of retaliation is her “gut feelings.” Because Johnson fails to establish a prima facie case for retaliation against Hoffman and Bocchichio, there is no basis for a claim against Rice for employer liability. Finally, Johnson attempts to make out a claim for racial discrimination against Rice. To establish a prima facie case of race discrimination, Johnson must show: (1) that she belongs to a protected group; (2) that she suffered an adverse employment action; and (3) the adverse employment action gives rise to an inference of discrimination. As detailed above and in the Court’s earlier Order, Johnson" }, { "docid": "23207211", "title": "", "text": "Inc., 127 F.3d 686, 692 (8th Cir.1997) (citing Cram v. Lamson & Sessions, Co., 49 F.3d 466, 474 (8th Cir.1995)); Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir.1997) (“The elements of a retaliation claim under § 1981 and Title VII are (1) protected activity, (2) subsequent adverse employment action, and (3) a causal relationship between the two. See Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 259 (8th Cir.1996) (§ 1981 retaliation claim); Kobrin [v. University of Minnesota], 34 F.3d [698,] 704 [ (8th Cir.1994) ] (Title VII retaliation claim).”); Harris v. Secretary, U.S. Dep’t of the Army, 119 F.3d 1313, 1318 (8th Cir.1997) (“To establish a prima facie case of retaliation, [the employee] needed to show: 1) she complained of discrimination; 2) the [employer] took adverse employment action against her; and 3) the adverse action was causally related to her complaint.”); Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir.1997) (also describing these elements of a prima facie showing of retaliation); Davis v. City of Sioux City, 115 F.3d 1365, 1369 (8th Cir.1997) (“To prove unlawful retaliation, [the employee] must show that she complained of discrimination, the [employer] took adverse action against her, and the adverse action was causally related to her complaint,” citing Marzec v. Marsh, 990 F.2d 393, 396 (8th Cir.1993)); Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir.1997) (also describing these elements as establishing a prima facie ease of retaliation). Once this prima facie show ing is made, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions, and, if the employer meets that burden, the presumption of retaliation disappears. Manning, 127 F.3d at 692 (citing Jackson v. Delta Special Sch. Dist. No. 2, 86 F.3d 1489, 1494 (8th Cir.1996)); Harris, 119 F.3d at 1318 (also citing Jackson); Moschetti v. Chicago, Central & Pacific R. Co., 119 F.3d 707, 709 (8th Cir.1997) (explaining this burden-shifting analysis, citing Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1332 (8th Cir.1996)); Montandon, 116 F.3d at 359. The factfinder is then “left to determine if [the employee] presented" }, { "docid": "22250607", "title": "", "text": "Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), forbids discrimination against employees for attempting to protest or correct allegedly discriminatory conditions of employment. McDonnell Douglas, 411 U.S. at 796, 93 S.Ct. at 1821. To support a claim of retaliatory discharge, a plaintiff must prove: 1) that she engaged in activity protected by Title VII; 2) that she was the subject of adverse employment action; and 3) that there is a causal link between her protected activity and the adverse action of her employer. Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 375 (6th Cir.1984). The City contends that Cooper failed to establish a prima facie case of retaliatory discharge, as she did not prove a causal link between her filing of OCRC charges and her discharge four months later. The district court found that Cooper filed discrimination charges with the OCRC on February 15, 1980, and that the City received a copy of the charges on February 25, 1980. The court stated that Cooper was then “immediately cited for myriad alleged violations of NOMBL rules,” and that those citations culminated in Cooper’s discharge. Cooper v. City of North Olst-ed, No. C82-3089, at 35-36. From this, the district court concluded that plaintiff established a prima facie case of retaliatory discharge. The district court’s factual findings do not support its conclusion that Cooper established a causal link between the OCRC complaint and her discharge. The mere fact that Cooper was discharged four months after filing a discrimination claim is insufficient to support an interference of retaliation. See, e.g., Brown v. ASD Computing Center, 519 F.Supp. 1096, 1116-17 (S.D.Ohio 1981), aff'd sub nom. Brown v. Mark, 709 F.2d 1499 (6th Cir.1983). The district court appears to have relied on the fact that Cooper was cited for rules violations six times in the seven month period preceding her OCRC complaint, and nine times in the four months following the complaint. The district court further noted that four of the pre-complaint citations were unjustified. The record in this case contains no evidence directly linking the nine citations at" }, { "docid": "14820530", "title": "", "text": "was unavailable. A man identifying himself as the plaintiff’s attorney called the supervisor during the shift and argued with him about the plaintiffs schedule. The plaintiff subsequently called the supervisor and told him that she was on medical leave. Plaintiff did not report to work on January 29 or on February 1, which was her next scheduled shift. The facility director then sent plaintiff a letter of termination for not reporting to work as scheduled. I. Retaliation — 4-2 U.S.C. § 2000e-3. The first issue raised by appellant is whether the district court erred in ruling against her on the claim for retaliation under 42 U.S.C. § 2000e-3. That section makes it unlawful for an employer to discriminate against an employee because of the employee’s opposition to an employment practice made unlawful under Title VII or because of the employee’s participation in an investigation, proceeding or hearing under Title VII. In order to establish a prima facie claim for retaliation, a plaintiff must show: 1) she engaged in protected opposition to discrimination or participation in a proceeding arising out of discrimination; 2) adverse action by the employer subsequent to the protected activity; and 3) a causal connection between the employee’s activity and the adverse action. Allen v. Denver School Board, 928 F.2d 978 (10th Cir.1991). In this case, the plaintiff alleged that she engaged in protected activity by filing the sex discrimination complaint with the Colorado State Personnel Board after her termination in 1979. Plaintiff alleged that this activity prompted various employees of the Department to harass her after she was reinstated. Plaintiff further contended that her ensuing termination in 1986 was caused by this allegation of sexual discrimination in the 1980 complaint. The plaintiff presented evidence of problems that occurred after her reinstatement in 1980. Based on this evidence, the district court determined that the plaintiff had made out a prima facie case of retaliation. The court was particularly concerned by the fact that plaintiff was assigned to a facility for male juveniles after she was reinstated. The defendants responded by producing evidence of the circumstances surrounding the alleged" }, { "docid": "8924953", "title": "", "text": "promotion, and has likewise failed to establish that she was as qualified or more qualified than the four Caucasian employees who were promoted. Any inference of discrimination that could be drawn from the promotion of four Caucasian employees is negated by the fact that four other Caucasian employees (Carol Atkinson, Linda Stalion, Charles McCormick, David Filbey) hired during the same period as Pafford were not promoted to the GS-11 level. , Pafford has thus failed to demonstrate a prima facie case of discriminatory denial of promotion. 3. Retaliation Although Pafford did not claim retaliation in her charge of discrimination, she alleges retaliation in her third amended complaint (and in each preceding complaint). There is no evidence that Pafford exhausted her administrative remedies with respect to this claim, but for reasons unexplained in this record the DOL did not raise the issue of waiver in the district court or on appeal. This affirmative defense is thus waived, and we consider the merits of Pafford’s retaliation claim. It was unclear from Pafford’s pleadings and submissions which actions she claimed to be retaliatory. The district court determined that Pafford’s retaliation claims related to the weapons screening, her termination, and her denial 'of transfer. Pafford does not challenge that characterization of her claims. The McDonnell Douglas burden-shifting formula applies to retaliation claims just as it applies to discrimination claims. See Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1146 (7th Cir.1997). To establish a prima facie case of retaliation, Pafford must show that (1) she engaged in statutorily protected expression, i.e., reporting or otherwise opposing conduct prohibited by Title VII, (2) she suffered an adverse employment action, and (3) there is a causal link between her protected expression and the adverse employment action. Id. If shown, the employer must offer a legitimate, nondiscriminatory reason for its actions. The burden then shifts back to the 'plaintiff to demonstrate that the employer’s proffered explanation is merely a pretext for retaliation. a. Weapons Screening Pafford contends that the district court applied the wrong legal standard in analyzing the unlawfulness of the “searches” to which she was subjected" }, { "docid": "4353562", "title": "", "text": "change in assignment or duties with no loss of pay, benefits, or title, such as what allegedly occurred in the case at bar, is simply not an adverse employment action. See Gupta v. Florida Board of Regents, 212 F.3d 571, 587 (11th Cir.2000), cert. denied, 531 U.S. 1076, 121 S.Ct. 772, 148 L.Ed.2d 671 (2001). Johnson also fails to show a causal link between the alleged protected activity and the alleged retaliation. She admits that her only evidence of retaliation is her “gut feelings.” Because Johnson fails to establish a prima facie case for retaliation against Hoffman and Bocchichio, there is no basis for a claim against Rice for employer liability. Finally, Johnson attempts to make out a claim for racial discrimination against Rice. To establish a prima facie case of race discrimination, Johnson must show: (1) that she belongs to a protected group; (2) that she suffered an adverse employment action; and (3) the adverse employment action gives rise to an inference of discrimination. As detailed above and in the Court’s earlier Order, Johnson has not suffered any adverse employment actions during her employment with the PCSO. She continues to be employed by the PCSO, continues to receive her same compensation, and continues to perform exactly the same duties. In her deposition, Johnson testified that she enjoyed very good relationships with her coworkers and that her ability to get along with them was excellent. It is also worth noting that Johnson’s allegations that she suffered racial discrimination at the PCSO are vague and conclusory. Johnson alleges that upon her arrival at Criminal, she was isolated and treated differently than her primarily white male peers. At one point in her Complaint, she alleges that all black bailiffs in Pinellas County are assigned strictly to Criminal and that there are no black supervisors. She contends that black bailiffs are routinely assigned to less desirable shifts, segregated into separate meeting and dining facilities, and denied promotions and other opportunities to work in more responsible positions. “Conclusory allegations without specific supporting facts have no probative value.” Hilburn v. Murata Elecs. N. Am., Inc.," }, { "docid": "22803274", "title": "", "text": "Corp., 834 F.2d 1373, 1377 (7th Cir.1987). We therefore turn to the question of Mrs. Holland’s prima facie case. 1. Prima facie case of retaliation Section 704 of Title VII of the Civil Rights Act of 1964 makes it unlawful “for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII, Mrs. Holland must show that (1) she engaged in statutorily protected expression; (2) she suffered an adverse action by her employer; and (3) there is a causal link between the protected expression and the adverse action. See, e.g., Jennings v. Tinley Park Community Consol. School Dist. No. 146, 796 F.2d 962, 966-67 (7th Cir.1986), cert. denied, 481 U.S. 1017, 107 S.Ct. 1895, 95 L.Ed.2d 502 (1987); Klein v. Trustees of Indiana Univ., 766 F.2d 275, 280 (7th Cir.1985); Reeder-Baker v. Lincoln Nat’l. Corp., 649 F.Supp. 647, 657 (N.D.Ind.1986), aff'd, 834 F.2d 1373 (7th Cir.1987). In order for the plaintiff’s expression to be protected by section 2000e-3(a), the challenged practice need not actually violate Title VII. Instead, it is sufficient if the plaintiff has a reasonable belief that she is challenging conduct in violation of Title VII. See Jennings, 796 F.2d at 967 (citing Berg v. La Crosse Cooler Co., 612 F.2d 1041, 1045-46 (7th Cir.1980)); see also Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1182 (7th Cir.1982) (section 2000e-3(a) protect’s employee opposition even if employee mistaken and no discrimination existed; “[t]he mistake must, of course, be a sincere one; and presumably it must be reasonable”). We believe that Mrs. Holland has set forth evidence sufficient to establish a prima facie case of unlawful retaliation. She clearly has put forward specific factual allegations demonstrating that she suffered adverse action by her employer — Carmichael refused to hold her job open during her maternity leave, and Dickey failed to offer her a job in his department after Carmichael told him that Mrs. Holland’s job performance was" }, { "docid": "10014425", "title": "", "text": "and either employment action. Further, Haywood has not shown that a suspiciously short period of time passed between her EEOC complaint and the adverse employment action. Haywood filed her EEOC charge in February 1999. The alleged transfer delay did not occur until July 1999, and Lucent did not terminate her employment until December 1999. This five to ten month time period is not sufficient to establish a causal link. See Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 398 (7th Cir.1999) (finding that four months negates causal inference); Parkins, 163 F.3d at 1039 (finding no causal inference when three months passed between the protected activity and the adverse employment action); Davidson, 133 F.3d at 511 (finding no causal inference where employee was terminated five months after filing EEOC complaint). The court acknowledges that temporal proximity is only evidence of causation, not a separate element of the prima facie case, and that in some cases a plaintiff can demonstrate causation despite a substantial time lag. See Lalvani, 269 F.3d at 791. Here, however, Haywood offers no evidence to show that Lucent would not have taken the adverse action “but for” her protected behavior, so she has failed to demonstrate a causal connection. Thus, Haywood has failed to establish the third element of a prima facie case of retaliation. Furthermore, even if Haywood had established her prima facie case, she has faded to establish that Lucent’s proffered nondiscriminatory, legitimate reason for the adverse employment actions, see Part II.B.2.b.i, was pretextual, see Part II. B.2.b.ii. Thus, the court finds that Lucent is entitled to judgment as a matter of law on this claim. Accordingly, the court grants Lucent’s motion for summary judgment on Haywood’s Count I retaliation claim. 2. Discrimination Claim In Count I, Haywood also alleges that Lucent discriminated against her by assigning and evaluating her work, delaying her transfer in July 1999 and terminating her employment in December 1999 because of her race. Title VII makes it “an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or" }, { "docid": "3133273", "title": "", "text": "poor evaluation she received in May of 1998, claiming that it denied her a promotion and an accompanying raise. However, a poor evaluation by itself, even one that seems suspicious due to its departure from previous evaluations, is not an adverse action that establishes a prima facie case of retaliation, Settle, 34 F.Supp.2d at 1009, and there is nothing in the record that indicates that this performance evaluation was linked to a missed opportunity for promotion. 2. Plaintiff has not established the third prong of a prima facie case of retaliation for two of the three adverse employment actions she has alleged. She has not shown a causal connection between her protected action and either the November 1997 failure to promote or the May 1998 schedule alteration. The February 1998 order by McClain to Plaintiff to get his approval before sending mail or making phone calls is the only allegation where a causal connection exists and a prima facie case of retaliation has been established. Often, temporal proximity between a protected activity and an adverse employment action has been found sufficient to establish a causal connection. See Tinsley v. First Union Nat’l Bank, 155 F.3d 435, 443 (4th Cir.1998) (“Normally, very little evidence of a causal connection is required to establish a prima facie case. In fact, we have held that merely the closeness in time between a filing of a discrimination charge and an employer’s firing an employee is sufficient to ‘make a prima facie case of causality.” (citations omitted)). The February 12,1998 order to Plaintiff to have McClain approve all of her correspondence and phone calls occurred soon after Defendants received Plaintiffs charge of discrimination from the EEOC in January of 1998. Temporal proximity is, however, insufficient to establish a causal connection when there has been no showing that a defendant knew that Plaintiff had engaged in the protected activity. See Tinsley, 155 F.3d at 444 (holding that there was no causal connection shown where there was no evidence that supervisor even knew that plaintiff had filed a complaint). In this case, Defendants were not notified by the" }, { "docid": "23294280", "title": "", "text": "Additionally, the department had minority employees and two of the three promotions Tarin challenges were filled by minorities. There simply is nothing in the record to suggest animus on account of race. We therefore affirm the district court’s dismissal of all claims of racial discrimination based on Title VII, 42 U.S.C. § 1981, and FEHA. B. Retaliation Tarin alleges that Defendants took several courses of action in direct retaliation against her for filing administrative complaints. She alleged that she: 1) was not allowed to telecommute in the same manner as her coworkers; 2) received unfavorable performance ratings, 3) was denied the opportunity to re-interview for promotions, and 4) was denied two promotional opportunities. To establish a prima facie case of retaliation under Title VII, “[t]he plaintiff must show (1) that she was engaging in a protected activity, (2) that she suffered an adverse employment decision, and (3) that there was a causal link between the protected activity and the adverse employment decision.” E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir.1989). Once the employee has established a prima facie case of retaliation, “the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment decision.” Id. If the employer is successful, “the plaintiff must then prove by a preponderance of the evidence that the proffered reasons are pretexts for retaliation or that a discriminatory reason more likely motivated the employer’s action.” Id. We agree with the district court that Tarin has not shown a causal connection between her protected activities and the filing of administrative complaints. The record reflects that Tarin was allowed to telecom mute in the same manner as her co-workers and that the County had legitimate reasons for limiting telecommuting privileges among all of its workers. The only performance evaluation on which Tarín received an improperly low score-the 60 on her AP-was conducted before Tarín had made any administrative appeals; it thus cannot be the basis for her retaliation claim. Although Tarín had difficulty in setting up a reinterview date, there is no evidence that Defendants deliberately tided to avoid" } ]

[ { "docid": "8965142", "title": "", "text": "a bankruptcy case when it does so in order to permit a dispute to be decided “on the substantive merits rather than technical defects.” Batstone v. Emmerling (In re Emmerling), 223 B.R. 860, 866 (2d Cir. BAP 1997). B. The Court Deems the Complaint Timely-Filed “[A] proceeding to determine the dischargeability of a debt” is an adversary proceeding. Fed. R. Bankr.P. 7001(6). An adversary proceeding “is commenced by filing a complaint with the court.” Fed. R.Civ.P. 3 (made applicable by Fed. R. Bankr.P. 7003). With limited exceptions not applicable here, a complaint must be accompanied by a filing fee. This requirement derives from 28 U.S.C. § 1930(b), the provision of the Judicial Code under which Congress authorized the Judicial Conference of the United States (“Judicial Conference”) to prescribe fees to be paid in bankruptcy cases. Under this authority, the Judicial Conference has promulgated a schedule entitled “Bankruptcy Court Miscellaneous Fee Schedule” (“Schedule”). The Schedule imposes, among other fees, a fee of $250 for filing a complaint. Under controlling Sixth Circuit law, the Court could have deemed the Complaint unfiled and dismissed it based on the failure to pay the required filing fee: The issue we are faced with, then, is whether the district court properly dismissed Truitt’s claims because she failed to pay the filing fee within the allotted time frame for filing civil actions in Title VII cases. Truitt argues that the delivery of her complaint to the district court constituted constructive filing of the complaint, regardless of when she paid the filing fee. We disagree. Title VII requires that a party file a civil action within ninety days of receiving a right-to-sue letter. An individual commences a civil action by filing a complaint with the clerk of court, see Fed. R.Civ.P. 3, 5(e), and a filing fee is required of a party instituting any civil action, see 28 U.S.C. § 1914(a).[ ] Everyone, [e]ven uncounseled litigants must act within the time provided by statutes and rules. Truitt, 148 F.3d at 647 (citation and internal quotation marks omitted). In Truitt, the clerk of the district court stamped a complaint" } ]

[ { "docid": "23524591", "title": "", "text": "inception in 1990. On March 1, 1993, after noting that Dickerson’s motion was without arguable merit under Rule 59(e), and that Dickerson had not brought forward any facts which would justify vacating dismissal of the case because of excusable neglect under Fed. R.Civ.P. 60(b), the court denied the motion. Dickerson then filed a motion for reconsideration of her motion to vacate dismissal, which the court treated as having been brought pursuant to Rule 60(b) for the purpose of reinstating the case. Observing that counsel had presented insufficient grounds to warrant relief under Rule 60(b), the court denied the motion on April 15, 1993. Dickerson’s notice of appeal, filed May 14, 1993, is timely only with respect to the district court’s denial of her second motion for reconsideration. II. ANALYSIS The sole issue on appeal is whether the district court abused its discretion in denying Dickerson’s Rule 60(b) motion for reconsideration of its refusal to vacate the dismissal of her case for failure to prosecute. Federal Rule of Civil Procedure 60(b) permits a party to seek relief from a final judgment, order, or proceeding on the grounds of mistake, inadvertence, excusable neglect, newly discovered evidence, or fraud. “It is well-established that Rule 60(b) relief ‘is an extraordinary remedy and is granted only in exceptional circumstances.’ ” Harold Washington Party v. Cook County, Illinois Democratic Party, 984 F.2d 875, 879 (7th Cir.) (quoting C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1205 (7th Cir.1984)), cert. denied, — U.S.-, 114 S.Ct. 86, 126 L.Ed.2d 54 (1993). Relief under Rule 60(b) from a dismissal for lack of prosecution is thus warranted “only upon a showing of extraordinary circumstances that create a substantial danger that the underlying judgment was unjust.” Daniels v. Brennan, 887 F.2d 783, 790 (7th Cir.1989) (quoting 3 Penny Theater Corp. v. Plitt Theatres, Inc., 812 F.2d 337, 340 (7th Cir.1987)) (citations, internal quotations omitted). The district court’s denial of a Rule 60(b) motion is reviewed under a highly deferential standard, and is reversed only for an abuse of discretion. See id.; Kagan v. Caterpillar Tractor Co., 795 F.2d" }, { "docid": "20647230", "title": "", "text": "125 S.Ct. 2991, 162 L.Ed.2d 909 (2005). “A clear example of an abuse of discretion exists where the trial court fails to consider the applicable legal standard or the facts upon which the exercise of its discretionary judgment is based.” In re Walter, 282 F.3d 434, 440 (6th Cir.2002). A trial court also abuses its discretion when we are left with the definite and firm conviction that its conclusion was a clear error of judgment. In re Bever, 300 B.R. 262, 264 (6th Cir.BAP 2003). Appellant does not attempt to identify any good reason for not filing his 60(b)(4) motion until more than eleven months after he was properly served with the complaint and the default-judgment motion. Cf. In re Martin, 268 B.R. 168, 171-72 (Bankr.E.D.Ark.2001) (affirming finding that 60(b)(6) motion was not filed within a reasonable time; “[o]f import is the fact that the debtor has made no explanation for her extreme delay in bringing this motion.”), aff'd, 271 B.R. 333 (8th Cir.BAP 2002). Further, appellant could have appealed directly from the default judgment, and he provides no reason for failing to do so. See In re G.A.D., Inc., 340 F.3d 331, 337 (6th Cir.2003) (“A party may not use a Rule 60(b)(4) motion as a substitute for a timely appeal.”). Thus, appellant provides no basis for us to conclude that the district court abused its discretion in finding that he did not file his motion within a reasonable time. IV. Appellant also contends that the judgment must be vacated because of a due-process violation that is separate and distinct from the alleged lack of personal jurisdiction. Appellant points out that the district court entered judgment just two days after he was first properly served with the complaint, summons, and default-judgment motion. Appellant correctly points out that this deprived him of two periods allotted by the rules: twenty days to answer or otherwise respond to the complaint under Fed. R. Civ. P. 12(a)(1)(A), and thirty days to file a response to a dispositive motion under N.D. Ohio L. Civ. R. 7.1(d). This is a non-jurisdictional due-process objection. We assume" }, { "docid": "18153510", "title": "", "text": "consistently with Greenig, that the revocation of Rasmussen’s discharge exceeded the court’s equitable powers under § 105(a). Although the bankruptcy court did not have authority to revoke the discharge under § 105(a), this does not mean the court was without any authority to set matters right. The bankruptcy court also relied on Bankruptcy Rule 9024, which applies Fed: R. Civ. P. 60 to cases under the Code, with several exceptions, one of which we discuss below. Rule 60(b) allows the court to vacate an order that it entered as a result of mistake, inadvertence, excusable neglect, fraud, or to conform to newly discovered evidence, or for any other reason justifying relief from the operation of the judgment. Rasmussen argues that Bankruptcy Rule 9024 does not apply to the revocation of a discharge because one of the exceptions it carves out from Fed. R. Civ. P. 60 is for “a complaint to revoke a discharge in a chapter 7 liquidation case,” which “may be filed only within the time allowed by § 727(e) of the Code.” Section 727(e) permits a complaint seeking revocation to be filed within one year after the discharge was granted. We do not see how this provision precludes the court from setting aside an order of discharge under Bankruptcy Rule 9024 six months after its issuance, which was the case here. Final bankruptcy orders can be set aside under Bankruptcy Rule 9024, see In re Metr-L-Wood Corp., 861 F.2d 1012, 1018 (7th Cir.1988), and nothing in the rule indicates that it does not apply to the revocation of discharges. See In re Cisneros, 994 F.2d 1462, 1466 (9th Cir.1993) (recognizing that Bankruptcy Rule 9024 provides authority for the court to revoke a discharge); In re Midkiff, 271 B.R. 383, 386 (10th Cir. BAP 2002) (same); In re Ali, 219 B.R. 653, 654 (Bankr.E.D.N.Y.1998) (same); In re Mann, 197 B.R. 634, 635 (Bankr.W.D.Tenn.1996) (same); In re Burgett, 95 B.R. 524 (Bankr.S.D.Ohio 1988) (same). Rasmussen also suggests that using Bankruptcy Rule 9024 to vacate a discharge order is essentially an end-run around the express terms of § 727(d). This" }, { "docid": "22220735", "title": "", "text": "filed more than 10 days after entry of judgment^ it] automatically becomes a Rule 60(b) motion.” See Hope, 43 F.3d at 1143 (citing United States v. Deutsch, 981 F.2d 299, 301 (7th Cir.1992)). Because Talano’s supporting memorandum was filed later than ten days after the district court’s entry of summary judgment, the district court had jurisdiction to hear his motion on the basis that it was a Federal Rule of Civil Procedure 60(b) motion. See Hope, 43 F.3d at 1143. “Relief under Rule 60(b) is an extraordinary remedy that is to be granted only in exceptional circumstances.” Provident Sav. Bank v. Popovich, 71 F.3d 696, 698 (7th Cir.1995). A Rule 60(b) motion permits relief from judgment when it is based on one of six specific grounds listed in the rule. See fed.R.Civ.P. 60(b); see also Deutsch, 981 F.2d at 301 (explaining that Rule 60(b) motions “must be shaped to the specific grounds for modification or reversal found in 60(b) — they cannot be general pleas for relief”). Rule 60(b) provides that the court may relieve a party ... 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. Fed. R. Civ. Pro. 60(b). We review the district court’s denial of Talano’s Motion for Reconsideration for an abuse of discretion. See Hope, 43 F.3d at 1144. “[S]uch abuse exists ‘only in situations in which no reasonable person could agree with the district court.’ ” Id. (citation omitted). Talano’s motion is not based on any of the grounds specified" }, { "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": "19951153", "title": "", "text": "1006. Here, such relief was a possibility because the entry of a discharge order alone does not irrevocably terminate bankruptcy proceedings. See Martinson v. Michael (In re Michael), 163 F.3d 526, 529 (9th Cir.1998) (“A case is not closed simply because a discharge of the debtor has been granted.”); In re Myatt, 101 B.R. 197, 199 (Bankr.E.D.Cal.1989). Instead, a Chapter 7 bankruptcy proceeding is only officially closed after a final report has been filed and the estate has been certified as “fully administered.” See 11 U.S.C. § 350(a); Fed. R. BankR. P. 5009. The Shermans’ bankruptcy petition, therefore, valid discharge order notwithstanding, remained open during the appeal and subject to the jurisdiction of this court. Contra Trone v. Roberts Farms, Inc. (In re Roberts Farms, Inc.), 652 F.2d 793, 797 (9th Cir.1981) (holding that a case was moot, but only because the reorganization plans had been implemented to the point where it was impossible to fashion effective relief). Were we to affirm the district court and grant the SEC’s motion to dismiss the Shermans’ petition, all recourse by the SEC would not have been foreclosed: The agency could have relied, for example, on Rule 60(b) of the Federal Rules of Civil Procedure to obtain relief from the bankruptcy court’s discharge order on the ground that that court’s denial of the motion to dismiss was in error. See Fed. R. BaNKR. P. 9024 (allowing a party to use Rule 60 of the Federal Rules of Civil Procedure to apply for relief from a judgment or order). In short, while the bankruptcy court retained jurisdiction to enter the discharge order on October 1, 2002, this case is not moot because entry of the discharge order alone did not irrevocably terminate the bankruptcy proceedings, thus leaving us able to fashion effective and equitable relief. IV. Dismissal “for Cause” This multitude of preliminaries over, we now reach the merits of the appeal: Should the SEC’s motion to dismiss the petition “for cause” under 11 U.S.C. § 707(a) have been granted, as the district court maintained, or not, as the bankruptcy court decided? We hold" }, { "docid": "6647609", "title": "", "text": "21 hearing. When he complained about the judgment, the court suggested he file a motion or appeal. Morris asserted in his “Motion for Reconsideration,” filed September 26, that he was unaware that a complaint had been filed against him because he was having trouble receiving his mail at the address he concedes to have been correct. The court denied the motion, which it treated as seeking relief from the default judgment under Federal Rule of Civil Procedure 60(b). Morris appealed. JURISDICTION The bankruptcy court had jurisdiction via 28 U.S.C. §§ 1334 and 157(b). We have jurisdiction under 28 U.S.C. § 158(a)(1). ISSUE 1. Whether service of process on defendant was effective to establish personal jurisdiction. 2. Whether relief from default judgment was warranted under Federal Rule of Civil Procedure 60(b)(1). STANDARD OF REVIEW Whether a judgment is void for lack of personal jurisdiction is reviewed de novo. Elec. Specialty Co. v. Road & Ranch Supply, Inc., 967 F.2d 309, 311 (9th Cir.1992). Questions of relief under Federal Rule of Civil Procedure 60(b)(1) from a default judgment are reviewed for abuse of discretion. Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223 (9th Cir.2000); Determan v. Sandoval (In re Sandoval), 186 B.R. 490, 493 (9th. Cir. BAP 1995). DISCUSSION The bankruptcy court was presented with a pro se litigant’s generic “motion for reconsideration” that did not specifically invoke any of the several rules of procedure upon which it might be based, which motion it construed as seeking relief from judgment under Federal Rule of Civil Procedure 60(b). This was an appropriate exercise of the court’s obligation to construe the rules to “secure the just, speedy, and inexpensive determination” of the matter. Fed. R. Bankr. P. 1001. Although the court dealt with the heart of the matter in a craftsman-like manner, Morris’ arguments in this appeal warrant a somewhat finer point on the pencil. Hence, we start by focusing on service of process before turning to the standards for relief from default judgment and for vacating default. I Morris says that he did not receive the summons and complaint that were served" }, { "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": "7725945", "title": "", "text": "contends that the district court erred in vacating its Fed. R.Civ.P. 41(a)(l)(A)(i) notice of dismissal. The district court vacated the notice of dismissal pursuant to Nobel’s motion to set a new trial date, which it construed as in substance making out a request for relief from judgment under Fed.R.Civ.P. 60(b)(6). We review district court rulings on Rule 60(b) motions for abuse of discretion. Encoder Commc’ns, Inc. v. Telegen, Inc., 654 F.2d 198, 203 (2d Cir.1981). Whether voluntary dismissal was available to ISC pursuant to Rule 41 (a)(1)(A)(i) is a legal question which we review de novo. See Somoza v. N.Y.C. Dep’t of Educ., 538 F.3d 106, 112 (2d Cir.2008). Here, if on de novo review we are satisfied that the district court acted correctly in vacating the notice of dismissal, the court’s Rule 60(b)(6) ruling would not be an abuse of discretion. Granted, Rule 60(b)(6) relief is only available if Rules 60(b)(1) through (5) do not apply, and if extraordinary circumstances are present or the failure to grant relief would work an extreme hardship on the movant. In re Emergency Beacon Corp., 666 F.2d 754, 758-59 (2d Cir.1981). ISC does not seriously contend, however, either that any of Rules 60(b)(1) — (5) applies here or that circumstances justifying vacatur of a notice of dismissal on the ground of Rule 41(a)(1)(A)(i)’s inapplicability would not qualify as “extraordinary” for purposes of Rule 60(b)(6). We turn, then, to the applicability and interpretation of Rule 41(a)(1)(A)®. Nobel contends that the district court acted properly because Rule 41(a)(1), it says, does not apply to petitions to compel arbitration, and ISC’s Rule 41(a)(1) notice was therefore of no legal effect. ISC argues, to the contrary, that its notice of voluntary dismissal was properly filed, and that the district court therefore erred in vacating it. Suffice it to say that the question is not without difficulty. As relevant here, Rule 41(a)(1)(A)® states that “the plaintiff may dismiss an action without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.” In arbitration proceedings under" }, { "docid": "17204483", "title": "", "text": "court orders when the court acts in its bankruptcy appellate capacity). As a result, appeals court review could begin, at least in theory, before the district court disposes of the Rule 60 motion, which in turn would divest the district court of jurisdiction to grant the motion. See Hoai v. Vo, 935 F.2d 308, 312 (D.C.Cir.1991) (stating that a district court may consider but not grant a pending Rule 60(b) motion while appellate review is ongoing unless the court of appeals remands the case). In this case, even though ESU filed its motion to vacate pursuant to Rule 60, the district court held that Bankruptcy Rule 8015 represented the only post-judgment mechanism available to the organization. See September Dismissal Order, No. 02-605, slip op. at 3 n.3. Treating ESU’s filing as a Rule 8015 motion, the court therefore concluded that ESU’s July notice of appeal never took effect and that the court retained jurisdiction to decide ESU’s motion to vacate, establish a new briefing schedule, and again dismiss ESU’s appeal. Id. at 3-4. Objecting to the district court’s decision, ESU argues that Rule 8015 cannot be the exclusive vehicle for challenging district court judgments because Bankruptcy Rule 9024, which provides that “Rule 60 F.R. Civ. P. applies in cases under the [Bankruptcy] Code,” allows disappointed litigants to file Rule 60 motions in the district court. Fed. R. Bankr.P. 9024. According to ESU, because its motion to vacate was based on clerical error — the disappearance of its June 12 filing' — Rule 60 represented the organization’s only option for seeking district court reconsideration. Although it is true that Rule 9024 refers to “cases under the Code,” Fed. R. Bankr.P. 9024, the advisory committee note suggests that Rule 60 applies in narrower circumstances in the bankruptcy context: “For the purpose of this rule all orders of the bankruptcy court are subject to Rule 60 F.R. Civ. P.” Fed. R. Bankr.P. 9024 advisory committee’s note (emphasis added); see also In re Conn Aire, Inc., 91 B.R. 462, 462 n. 2 (M.D.Tenn.1988) (concluding that Rule 9024 applies Rule 60 only to challenges to" }, { "docid": "12748197", "title": "", "text": "13' Trustee concluded the § 341-meeting of creditors on August 2, 2016, so the 30-day deadline after that date was September 1, 2016. Thus, the Creditor had until at least September. 1, 2016 to file its objection to the Debtors’ claimed exemptions. The Creditor filed its objection at issue on July 25, 2016, so the objection was timely. III. Excusable neglect Under the circumstances presented, the Court finds and concludes that the Debtor has shown excusable neglect in his failure to timely file a response to the Creditor’s Objection, and that the Court should grant Debtor relief from the August 15, 2016 Order, under Fed. R. Civ. P. 60(b)(1), Fed. R. Bankr. P. 9024. Fed. R. Civ. P. 60(b) provides, in pertinent part: On motion and just terms, the court may relieve a party or its legal representa-five from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect[.] “The decision on a motion to set aside a default judgment is left to the discretion of the trial judge.” Bavely v. Powell (In re Baskett), 219 B.R. 754, 757 (6th Cir. BAP 1998) (relying on Meganck v. Couts (In re Couts), 188 B.R. 949, 951 (Bankr. E.D. Mich.1995)). In Waifersong, Ltd. Inc. v. Classic Music Vending, 976 F.2d 290, 292 (6th Cir. 1992), the Sixth Circuit explained that a determination of whether to set aside a default judgment under Civil Rule 60(b)(1) requires a three-step analysis. First, the moving party must “demonstrate that his default was the product of mistake, inadvertence, surprise, or excusable neglect.” Only after this threshold requirement has been satisfied may the Court consider the remaining two steps of the analysis; namely “whether the [moving party] has a meritorious defense,” and “whether the [non-moving party] will be prejudiced” by relief from judgment. Id. In order to show that relief is appropriate under Rule 60(b)(1) based on “excusable neglect,” Debtor must show both (1) that his conduct in failing to timely respond to Creditor’s Objection constituted “neglect” within the meaning of Rule 60(b)(1); and (2) that his “neglect” was excusable. In" }, { "docid": "1899771", "title": "", "text": "Debtor filed a motion to \"vacate dismissal” and cited Rule 9005. This rule states: Rule 61 Fed. R. Civ. P. applies in cases under the Code. When appropriate, the court may order the correction of any error or defect or the cure of any omission which does not affect substantial rights. Fed. R. Bankr.P. 9005. The dismissal of Debtor’s case affects his substantial right to file a Chapter 13 petition. For this reason, Rule 9005 is not applicable in this case. Nevertheless, although the Federal Rules of Bankruptcy Procedure do not specifically permit a motion to \"vacate dismissal”, we construe Debtor's motion as a motion for relief from judgment or order under Fed. R. Civ. P 60(b), applicable in bankruptcy cases via Rule 9024. See Fernandez v. GE Capital Mortgage Services, Inc. (In re Fernandez), 227 B.R. 174, 177 (9th Cir. BAP 1998). . Pursuant to Rule 8002(b), both orders would have been before us if Debtor had filed his motion to vacate the dismissal within 10 days after the Dismissal Order was entered. See Watson v. Shandell (In re Watson), 192 B.R. 739, 742 n. 3 (9th Cir. BAP 1996) (appeal of an order denying a Rule 9023 motion was sufficient to bring up the merits of both the underlying order and the Rule 9023 motion at issue if the Rule 9023 motion was filed within the 10 days after entry of the underlying order), aff’d, 116 F.3d 488 (9th Cir.1997) (table). . Were we to have addressed this presumption of willful violation on the merits, we would certainly have decided that L.B.R. 3015(b)-l is inconsistent with Section 109(g)(1) and could not relieve the bankruptcy judge from taking evidence and making specific findings of fact. There is no indication in the Bankruptcy Code that \"Congress meant to restrict the eligibility of debtors whose cases were dismissed through no fault of their own.” In re Fulton, 52 B.R. 627, 632 (Bankr.D.Utah 1985). It is necessary that a \"finding of willfulness must be made when a sanction is imposed,” Montgomery v. Ryan (In re Montgomery), 37 F.3d 413, 415 (8th Cir.1994)," }, { "docid": "22521674", "title": "", "text": "claim, and did not provide his implied consent,\" the First Circuit remanded for further proceedings. See Fustolo v. The Patriot Grp., LLC, 896 F.3d 76, 90 (1st Cir. 2018). One week after the First Circuit's decision, Patriot, on July 23, 2018, filed a Motion for Reconsideration of Order in Light of Appellate Decision, seeking relief from the Court's January 9, 2017 Order deeming moot the counts pled in its Complaint for denial of the discharge. The Defendant opposed the Motion. On September 6, 2018, this Court entered an order treating Patriot's Motion as a \"Motion for Clarification of the Memorandum and Order dated January 9, 2017 (Doc. Nos. 323 and 324) (jointly, the \"Rulings\") as no reconsideration or relief from the Rulings with respect to Counts I through V and VIII in the Plaintiff's Complaint is warranted under Fed. R. Civ. P. 59 or Fed. R. Civ. P. 60(b), made applicable hereto by Fed. R. Bankr. P. 9023 and Fed. R. Bankr. P. 9024, respectively.\" This Court stated: The Court clarifies that it did not, and did not intend to, dismiss, dispose of, or adjudicate the remaining counts of the Plaintiff's Complaint, namely Counts I through V and VIII (the \"Remaining Counts\") through the Rulings. Rather, the Court merely determined that it was unnecessary to adjudicate the Remaining Counts as to do so would be superfluous because the Court entered judgment in favor of the Plaintiff on the added claim under 11 U.S.C. § 727(a)(6) pursuant to the Plaintiff's Motion to Conform the Pleadings to the Evidence (Doc. No. 308). The Court's Rulings that the Remaining Counts were moot reflects the Court's determination that they no longer presented a justiciable controversy because issues involved in their resolution were academic in light of the denial of the Debtor's discharge. See generally Black's Law Dictionary 909 (5th ed. 1979). See e.g., JP Morgan Chase Bank v. Koss (In re Koss), 403 B.R. 191, 215 (Bankr. D. Mass. 2009) (after denying the debtor's discharge for false oath under 11 U.S.C. § 727(a)(4)(A), the Court \"dismissed as moot\" the remaining §§ 523 and 727" }, { "docid": "22521673", "title": "", "text": "granted Patriot's Motion to Conform and issued a decision in which it concluded that, pursuant to Fed. R. Civ. P. 15(b)(2), made applicable to the proceeding by Fed. R. Bankr. P. 7052, it was required to treat Patriot's claim under 11 U.S.C. § 727(a)(6)(A) as if it were raised in the Complaint, and that Fustolo's refusal to obey the December 31st Order warranted denial of his discharge under § 727(a)(6)(A). The Court also determined that the remaining counts in the Complaint were moot. See The Patriot Grp., LLC v. Fustolo (In re Fustolo), 563 B.R. 85, 113 (Bankr. D. Mass. 2017). The United States District Court for the District of Massachusetts affirmed this Court's January 9, 2017 decision on September 6, 2017, see Fustolo v. The Patriot Grp., LLC, No. 17-CV-10128-LTS, 2017 WL 3896667 (D. Mass. Sept. 6, 2017), but the United States Court of Appeals for the First Circuit, on July 16, 2018, reversed this Court's order granting the Motion to Conform. While concluding that \"Fustolo did not receive adequate notice of an unpleaded claim, and did not provide his implied consent,\" the First Circuit remanded for further proceedings. See Fustolo v. The Patriot Grp., LLC, 896 F.3d 76, 90 (1st Cir. 2018). One week after the First Circuit's decision, Patriot, on July 23, 2018, filed a Motion for Reconsideration of Order in Light of Appellate Decision, seeking relief from the Court's January 9, 2017 Order deeming moot the counts pled in its Complaint for denial of the discharge. The Defendant opposed the Motion. On September 6, 2018, this Court entered an order treating Patriot's Motion as a \"Motion for Clarification of the Memorandum and Order dated January 9, 2017 (Doc. Nos. 323 and 324) (jointly, the \"Rulings\") as no reconsideration or relief from the Rulings with respect to Counts I through V and VIII in the Plaintiff's Complaint is warranted under Fed. R. Civ. P. 59 or Fed. R. Civ. P. 60(b), made applicable hereto by Fed. R. Bankr. P. 9023 and Fed. R. Bankr. P. 9024, respectively.\" This Court stated: The Court clarifies that it did not," }, { "docid": "4204213", "title": "", "text": "which a debtor should be charged so as to deny reinstatement of a Chapter 13 case and plan through vacation of a dismissal order. As the record supports the propriety of relief based preliminarily on the United Coin Meter equitable factors, the Panel will next address whether Debtor was entitled to relief under either clause (1) or clause (6) of Rule 60(b). Clause (1) and clause (6) of Rule 60(b) are mutually exclusive. Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 393, 113 S.Ct. 1489, 1497, 123 L.Ed.2d 74 (1993). Specifically, clause (6) applies “only in exceptional or extraordinary circumstances which are not addressed by the first five numbered clauses of the Rule.” Olle v. Henry & Wr ht Corp., 910 F.2d 357, 365 (6th Cir.1990); Cincinnati Ins. Co., 151 F.3d at 578; Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir.1989); see also Pierce v. United Mine Workers, 770 F.2d 449, 451 (6th Cir.1985), cert. denied, 474 U.S. 1104, 106 S.Ct. 890, 88 L.Ed.2d 925 (1986); Ackermann v. United States, 340 U.S. 193, 199, 71 S.Ct. 209, 212, 95 L.Ed. 207 (1950). This point was reinforced by the Sixth Circuit in McCurry v. Adventist Health System/Sunbelt, Inc., 298 F.3d 586, 592 (6th Cir.2002), where it held that a trial court erred in considering and granting relief to plaintiffs under Rule 60(b)(6) before analyzing the propriety of relief under Rule 60(b)(1). The Panel will therefore first address whether Rule 60(b)(1) authorized the bankruptcy court to vacate the dismissal order. The circumstances of this case do not fit within Rule 60(b)(1), which provides relief based on “mistake, inadvertence, surprise or excusable neglect.” Nothing in this case raises any suggestion that Debtor’s plan defaults and the resulting dismissal occurred due to mistake, inadvertence or surprise. The focus is thus whether “excusable neglect” fairly describes what occurred in this case. Although the issue determined by the Supreme Court in Pioneer was grounds for permitting a late filed claim under Fed. R. Bankr P. 9006, it also extensively discussed Rule 60(b)(1) and (6) and the concepts" }, { "docid": "12748196", "title": "", "text": "objection to exemptions (Docket #74, the “Creditor’s Objection”) was not timely filed. The Court must reject this argument. The Court concludes that because of the conversion of this case from Chapter 7 to Chapter 13, which occurred on June 22, 2016, a new deadline arose for any party in interest to object to the Debtors’ claimed exemptions. Consistent with the wording of Fed. R. Bankr. P. 4003(b)(1), that deadline was 30 days after the conclusion of the § 341 meeting of creditors in the Chapter 13 case, or 30 days after the Debtors filed “any amendment” to their claimed exemptions, whichever date is later. See In re Kositphasaj, 2006 WL 4854386 (Bankr. D. Md. 2006) at * 3 and cases cited therein. This means that the Creditor had until at least 30 days after the conclusion of the § 341 meeting held in the Chapter 13 case to object to the Debtors’ claimed exemptions, regardless of when the Debtors filed their Schedule C claims of exemption or any of the multiple amendments thereto. The Chapter 13' Trustee concluded the § 341-meeting of creditors on August 2, 2016, so the 30-day deadline after that date was September 1, 2016. Thus, the Creditor had until at least September. 1, 2016 to file its objection to the Debtors’ claimed exemptions. The Creditor filed its objection at issue on July 25, 2016, so the objection was timely. III. Excusable neglect Under the circumstances presented, the Court finds and concludes that the Debtor has shown excusable neglect in his failure to timely file a response to the Creditor’s Objection, and that the Court should grant Debtor relief from the August 15, 2016 Order, under Fed. R. Civ. P. 60(b)(1), Fed. R. Bankr. P. 9024. Fed. R. Civ. P. 60(b) provides, in pertinent part: On motion and just terms, the court may relieve a party or its legal representa-five from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect[.] “The decision on a motion to set aside a default judgment is left to the discretion of the trial" }, { "docid": "23480511", "title": "", "text": "the filing fee); Wrenn v. American Cast Iron Pipe Co., 575 F.2d 544, 547 (5th Cir.1978) (holding that the untimely payment of the filing fee does not vitiate the validity of a timely filed complaint). Cf. also Parissi v. Telechron, Inc., 349 U.S. 46, 47, 75 S.Ct. 577, 577, 99 L.Ed. 867 (1955) (per curiam) (untimely payment of a filing fee under 28 U.S.C. § 1917 does not vitiate the validity of a notice of appeal); Gould v. Members of New Jersey Div. of Water Policy & Supply, 555 F.2d 340, 341 (3d Cir.1977) (“It is thus clear that the filing fee requirement cannot operate to render untimely a notice of appeal that is timely received in the Clerk’s office.”). Therefore, once the filing fee requirement is satisfied (either through remittance of the filing fee or the district court’s grant of the plaintiffs IFP application), the filing date will relate back to the date on which the clerk received plaintiffs papers. In the present case, because the district court ultimately granted McDowell leave to proceed informa pauperis, we conclude that McDowell's complaint was constructively and timely filed on October 25,1993. We cannot agree with the district court’s reasoning that the fourteen-month delay between the clerk’s rejection of McDowell’s pleading and the submission of McDowell’s IFP application somehpw renders the timely filed complaint untimely. Of course, we do not suggest that a plaintiff can delay prosecution of an action indefinitely by withholding the filing fee and refusing to submit a request to proceed informa pauperis. See Williams-Guice v. Board of Educ., 45 F.3d 161, 163 (7th Cir.1995) (“[P]laintiffs should not possess an option to delay service indefinitely by declining to pay the docket fee.”). Here, however, there is no evidence that McDowell acted in bad faith or that the defendants have been prejudiced by the delay. Contrary to the defendants’ assertion that McDowell has “failed to offer any explanation whatsoever why he waited an additional sixteen [sic] months ... to refile.,..,” Appellee’s Brief at 10, McDowell has offered a plausible excuse for the delay: After receiving a rejection notice from the" }, { "docid": "23480510", "title": "", "text": "conclusion that the clerk improperly refused to docket the complaint because of technical deficiencies in the format of the pleading. Notably, the improperly captioned complaint was served on the defendants and alleged sufficient facts to put defendants on notice of McDowell’s claims. We also agree with the district court’s conclusion that remittance of a filing fee is not jurisdictional and that the clerk should have accepted McDowell's complaint despite his failure to submit a filing fee or request IFP status. Although a complaint is not formally filed until the filing fee is paid, we deem a complaint to be constructively filed as of the date that the clerk received the complaint — as long as the plaintiff ultimately pays the filing fee or the district court grants the plaintiffs request to proceed in forma pauperis. See Rodgers ex rel. Jones v. Bowen, 790 F.2d 1550, 1551-52 (11th Cir.1986) (holding that a complaint is deemed “filed” for statute of limitations purposes when actually or constructively received by the court clerk — despite the untimely payment of the filing fee); Wrenn v. American Cast Iron Pipe Co., 575 F.2d 544, 547 (5th Cir.1978) (holding that the untimely payment of the filing fee does not vitiate the validity of a timely filed complaint). Cf. also Parissi v. Telechron, Inc., 349 U.S. 46, 47, 75 S.Ct. 577, 577, 99 L.Ed. 867 (1955) (per curiam) (untimely payment of a filing fee under 28 U.S.C. § 1917 does not vitiate the validity of a notice of appeal); Gould v. Members of New Jersey Div. of Water Policy & Supply, 555 F.2d 340, 341 (3d Cir.1977) (“It is thus clear that the filing fee requirement cannot operate to render untimely a notice of appeal that is timely received in the Clerk’s office.”). Therefore, once the filing fee requirement is satisfied (either through remittance of the filing fee or the district court’s grant of the plaintiffs IFP application), the filing date will relate back to the date on which the clerk received plaintiffs papers. In the present case, because the district court ultimately granted McDowell leave to proceed" }, { "docid": "10301903", "title": "", "text": "739 (Bankr.C.D.Ill.1999); see also In the Matter of Colley, 814 F.2d 1008, 1010 (5th Cir.1987); Clark, 172 B.R. at 705; In re Coffman, 271 B.R. 492, 498 (Bankr.N.D.Tex.2002); Amtech Lighting Servs. Co. v. Payless Cashways (In re Payless Cashways, Inc.), 230 B.R. 120, 137 (8th Cir. BAP 1999) (“In essence, then, Rule 60(b) helps to define the term ‘cause’ in § 502© and provides the applicable criteria for reconsidering claims.” (citing Employment Sec. Div. v. W.F. Hurley, Inc. (In re W.F. Hurley, Inc.), 612 F.2d 392, 396 n. 4 (8th Cir.1980))). Fed. R. BaniírP. 9024 states in relevant part: [Rule 60](b) On motion and just terms, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence ...; (3) fraud ..., misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. Warren, 499 B.R. at 919. If the Court were to analyze whether “cause” exists in accordance with Rule 9024, the Court would find that the Debtors cannot satisfy any of the factors listed above. The Debtors set forth no evidence of mistake, excusable neglect, newly discovered evidence, fraud or anything resembling the reasons set forth in Rule 9024. Additionally, the Court finds insufficient grounds to grant the Debtors relief based upon equitable grounds in the catch-all category of Rule 60(b)(6). Rule 60(b)’s catchall provision is “an extraordinary remedy which may be invoked only upon a showing of exceptional circumstances, and that absent such relief, an extreme and unexpected hardship will result.” Saunders v. United States, 380 Fed.Appx. 959, 964 (11th Cir.2010). No exceptional circumstances exist in the record that warrant granting relief in accordance with Rule 60(b)(6). Conclusion The Debtors’ attempt to use the reconsideration procedure of section 502© in the context of a Plan Modification under section 1329 is not" }, { "docid": "8205054", "title": "", "text": "or judgment. FRCP 60(b)(2), (3) and (6). Factors to be considered in ruling upon a motion brought under FRCP 60(b) include the timeliness of the motion, the circumstances surrounding the need to vacate the order, and whether the non-moving party will be prejudiced if the order is set aside. See Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 59 v. Superline Transp. Co., Inc., 953 F.2d 17, 20 (1st Cir.1992); Gabrilowitz v. Ricci, 125 B.R. 702, 703 (Bankr. D.R.I.1991). Motions under FRCP 60(b)(6) are granted only when exceptional circumstances justifying extraordinary relief exist. In re LaFata, 483 F.3d 13, 24 (1st Cir.2007) (citing Ahmed v. Rosenblatt, 118 F.3d 886, 891 (1st Cir.1997)). A motion under FRCP 60(b)(6) must be made within a reasonable time and the movant must make a suitable showing of a meritorious claim or defense. Cotto v. United States, 993 F.2d 274, 280 (1st Cir.1993). In this case, the Trustee has not based the Motion to Vacate on newly discovered evidence, fraud or mistake uncovered in his investigation of the Debtor’s financial affairs or the administration of the bankruptcy estate. Instead, he has based his motion on the Application and bankruptcy schedules filed by the Debtor and his conclusion that in such documents the Debtor has faded to show that she satisfies the second prong of 28 U.S.C. § 1930(f)(1), namely that she could not pay the filing fee in installments. Ordinarily, such justification for a request under FRCP 60(b) would not be sufficient. However, in this case the Order was entered without notice to the Trustee. In addition, the Order was entered ex parte and contained language expressly advising the Debtor that it was subject to being vacated “if developments in the administration of the bankruptcy case demonstrates that the waiver was unwarranted.” The absence of any opportunity for the Trustee to be heard on the approval of the waiver of the chapter 7 filing fee arguably deprived the Trustee of due process of law. It is the availability of due process, namely the opportunity to present evidence and fully argue a question in open court," } ]

[ { "docid": "22715894", "title": "", "text": "2d 587, 44 Cal. Rptr. 483. The California Supreme Court declined to hear the case. We granted certiorari along with Chapman v. California, ante, p. 18, to consider whether the California harmless-error constitutional provision could' be used in this way to ignore the alleged federal constitutional error. 384 U. S. 904. We have today passed upon the question in Chapman, but do not reach it in this case because we are satisfied that the lower court erroneously decided that our Preston case required that this, search be held- an unreasonable one within the meaning of the Fourth Amendment. We made it clear in Preston that whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case and pointed out, in particular, that searches of cars that are constantly movable may make the search of a car without a warrant a reasonable one although the result might be the opposite in a search of a home, a store, or other fixed piece of property. 376 U. S., at 366-367. In Preston the search was sought to be justified primarily on the ground that it was incidental to and part of a lawful arrest. There we said that “[o]nce an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” Id., at -367. In the Preston case, it was alternatively argued that the warrantless search, after the arrest was over and while Preston’s car was being held for him by the police, was justified because the officers had probable cause to believe the car was stolen. But the police arrested Preston for vagrancy, not theft, and no claim was made that the police had Authority to hold his car on that charge. The search was therefore to be treated as though his car was in his own or his agent’s possession, safe from intrusions by the police or anyone else. The situation involving petitioner’s car is quite different. Here, California’s Attorney General concedes that the search" } ]

[ { "docid": "6474355", "title": "", "text": "does not mean that the arresting officers have to know the ultimate source of their information, but only that the chain, once formed, be reliably cohesive. In this instance the police were apprised of defendant’s illegal activities by two trustworthy wit nesses, one of whom had been the intended victim in an attempt to pass a counterfeit twenty dollar bill and the other who aided in the identification of defendant’s car and license number. Thus, the official police communications received by the New Jersey State Police, anchored in a reliable eye witness account of the crime, were of sufficient authority to warrant the arrest of the defendant on probable cause. Even though defendant was lawfully arrested any search incident thereto may only be proper if conducted within the constitutional framework relating to reasonable searches and seizures. Ker v. State of California, supra; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081 (1961). The arrest of the defendant took place on Route 22, but there was no search carried on at that locality. Subsequent to the arrest and for reasons of safety, officer Decker drove defendant’s car back to the Clinton barracks where the search was conducted. Since there is no attempt to validate the search under any forfeiture proceedings, cf. Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), the reasonableness standards adopted by the Supreme Court in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), will control. In Preston the police received a call at three o’clock in the morning that three suspicious men were seated in an automobile that had been parked in the town’s business district since 10:00 P.M. the previous evening. The police questioned the men and, when they were not satisfied as to their true intentions, arrested the trio for vagrancy. There was no search made of the auto at the time of arrest and after it had been driven to the station by an officer it was then towed to a garage. Only after the three men had" }, { "docid": "11996289", "title": "", "text": "the informant, compare Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), the victim’s report has the virtue of being based on personal observation, a factor stressed in Aguilar v. United States, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and is less likely to be colored by self-interest than is that of an informant. Admittedly a crime victim’s observation may be faulty in some respects, as it may have been here; however, the mistakes are irrelevant if there is sufficient particularized information to constitute probable cause. Except in those few cases where cameras are part of a burglar alarm system, most reports are likely to be less than perfect. The next question is whether, with this information, the police did in fact arrest Appellant on the robbery charge. There is no dispute that from the time the police stopped Appellant because of the traffic violations he was not free to go, that the police intended to take him to the police station, and that Appellant felt he was being detained. This was plainly an arrest. Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Kelley v. United States, 111 U.S.App.D.C. 396, 298 F.2d 310 (1961); Coleman v. United States, 111 U.S.App.D.C. 210, 295 F.2d 555 (1961), cert, denied, 369 U.S. 813, 82 S.Ct. 689, 7 L.Ed.2d 613 (1962). When the police continued their detention of Appellant on the scene after having probable cause to believe he was the wanted robber described over the police radio, the arrest also became one for robbery. Whether or not a specific statement of that fact was made to Appellant is irrelevant. Coleman v. United States, supra. Once it is established that Appellant was properly arrested on a robbery charge, there is no doubt as to the validity of the search of the person and the car incidental to the arrest and not remote in time and place. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct." }, { "docid": "2249619", "title": "", "text": "462, 465-466 (9th Cir. 1969). Appellant relies upon Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). On the facts of the present case we believe Preston supports the decision of the trial court and is not in conflict with it. There were two other persons in the automobile at the time of this arrest, a factor which emphasized the need for an immediate search both to prevent the destruction of evidence of the offense and to look for weapons or other items which might be used to assault the officers. We also consider that the arresting officer, in the course of such a search, may seize valuables belonging to the arrested person for safekeeping if such items are in the plain view of the officer and the arrested person has been or is about to be taken into police custody. See Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). Thus, the officers had a right to seize the roll of nickels for safeguarding. It is immaterial that the nickels were unrelated to the crime for which petitioner was arrested. Harris v. United States, 331 U.S. 145, 154-155, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Creighton v. United States, 132 U.S.App.D.C. 115, 406 F.2d 651 (1968). See also Abel v. United States, 362 U.S. 217, 239, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Massey v. United States, 358 F.2d 782, 785 (10th Cir. 1966), cert. denied, 385 U.S. 878, 87 S.Ct. 159, 17 L.Ed.2d 105 (1966). We conclude that the seizure of the roll of nickels from the inside of petitioner’s car was reasonable under the Fourth and Fourteenth Amendments. The roll of nickels and knowledge of the burglary constituted probable cause to later arrest petitioner for burglary and to obtain a search warrant to search the trunk of his car. We need not determine the reasonableness of the warrantless search of the trunk of petitioner’s car at the time of arrest or the seizure of the screwdriver. Even assuming that this search and seizure was violative of" }, { "docid": "6474356", "title": "", "text": "locality. Subsequent to the arrest and for reasons of safety, officer Decker drove defendant’s car back to the Clinton barracks where the search was conducted. Since there is no attempt to validate the search under any forfeiture proceedings, cf. Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), the reasonableness standards adopted by the Supreme Court in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), will control. In Preston the police received a call at three o’clock in the morning that three suspicious men were seated in an automobile that had been parked in the town’s business district since 10:00 P.M. the previous evening. The police questioned the men and, when they were not satisfied as to their true intentions, arrested the trio for vagrancy. There was no search made of the auto at the time of arrest and after it had been driven to the station by an officer it was then towed to a garage. Only after the three men had been booked did the police go to the garage and search the car — finding guns and other items implicating the men in a conspiracy to rob a bank. Speaking for the Court Mr. Justice Black stated that “[W]e think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.” 376 U.S. 364 at 368, 84 S.Ct. 881 at 884. Although this appeal superficially bears resemblance to the facts in Preston it is essentially well within the constitutional guidelines justifying a search incidental to a lawful arrest. The troopers first sighted Dentó driving along Route 22 at approximately 4:40 P.M. Twenty minutes later, at 5:00 P.M., trooper Decker was on the telephone with agent Mullady relating the arrest of the defendant and the finding of the counterfeit bills in the car. Clearly" }, { "docid": "14231142", "title": "", "text": "illegal is, we think, wholly without merit. In Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), and Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), cars were searched after the defendants had been arrested and after the cars had been taken into custody and removed from the scene. In Preston the Court pointed out that the search was “too remote in time or place to have been made as incidental to the arrest”, and held the search illegal. 376 U.S. at 368, 84 S.Ct. at 884. However, it was made quite clear that the right of the police, without a search warrant, to make a contemporaneous search pursuant to a lawful arrest “extends to things under the accused’s immediate control * * * and, to an extent depending on the circumstances of the case, to the place where he is arrested.” 376 U.S. at 367, 84 S.Ct. at 883. In Cooper, on the other hand, the search was upheld on the basis of its being “closely related to the reason petitioner was arrested, the reason his car had been impounded, and the rea son it was being retained.” 386 U.S. at 61, 87 S.Ct. at 791. In the instant case, we think the search was sufficiently contemporaneous with the arrest, notwithstanding the fact that the defendants were removed from the scene while the search was in progress. See Morris v. Boles, 386 F.2d 395 (4th Cir. 1967); Crawford v. Bannan, 336 F.2d 505 (6th Cir. 1964). Moreover, the search was closely related to the offense for which the defendants were arrested, and the officers were charged by statute with a duty to seize the car. 49 U.S.C.A. § 782. See United States v. Haith, 297 F.2d 65 (4th Cir. 1961). Nor is it of controlling importance that the officers might have delayed their search until they procured a search warrant. Cooper reaffirmed the holding of United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 94 L.Ed. 653 (1950), that the “relevant test is not whether" }, { "docid": "11996290", "title": "", "text": "was being detained. This was plainly an arrest. Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Kelley v. United States, 111 U.S.App.D.C. 396, 298 F.2d 310 (1961); Coleman v. United States, 111 U.S.App.D.C. 210, 295 F.2d 555 (1961), cert, denied, 369 U.S. 813, 82 S.Ct. 689, 7 L.Ed.2d 613 (1962). When the police continued their detention of Appellant on the scene after having probable cause to believe he was the wanted robber described over the police radio, the arrest also became one for robbery. Whether or not a specific statement of that fact was made to Appellant is irrelevant. Coleman v. United States, supra. Once it is established that Appellant was properly arrested on a robbery charge, there is no doubt as to the validity of the search of the person and the car incidental to the arrest and not remote in time and place. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Affirmed. . This is a violation of Section 120(c), Part I, of the D.C. Traffic and Motor Vehicle Regulations. . Appellant variously described himself as being 194 pounds and 183 pounds at the time of arrest; he said he weighed 215 pounds when he was being tried. . Logan Circle is about 20 blocks from the scene of the robbery. Before the police stopped Appellant, they had followed him for several blocks travelling in a direction leading away from the location of the Howard Johnson. . While saying that the conduct in this case, where the police had seen him commit the traffic violations and where they planned to take him to the precinct station, constituted an arrest, we do not say that mere detention would give rise to an arrest in all circumstances. The police may, of course, question a citizen" }, { "docid": "13095358", "title": "", "text": "running the license check. The thing which did impress them was that a “J.B. Hairston” of Kankakee, Illinois, had his license suspended, and the sheriffs had stopped a person who met that identification, namely, a J.B. Hairston of Kankakee, Illinois. After the information was received from the dispatcher, Deputy Morefield told appellant that he was under arrest, and would be taken to the Detention Center. He was searched and found to possess the firearm in question. The search was made because Hairston was to be placed in the police vehicle and transported to the Detention Center. Hairston was searched as a routine precaution. Upon these facts the trial court found that Deputy Morefield had both a subjective and objective belief that Hairston was a person driving without a valid license, and so subject to arrest. The test for probable cause for arrest without a warrant is set out in Beck v. Ohio, 379 U.S. 89, at 91 and 94, 85 S.Ct. 223 at 225 and 227, 13 L.Ed.2d 142, at 145 and 148. “The constitutional validity of the search ... must depend upon the constitutional validity of the petitioner’s arrest. Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it— whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense____ ‘The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating ... often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.’ Brinegar v. United States, supra, 338 U.S. [160] at 176 [69 S.Ct. 1302 at 1311], 93 L.Ed. [1879] at 1891.” (at 91, 85 S.Ct. at 226, 13 L.Ed.2d at 145). # * * * * * “When the constitutional validity of an arrest is challenged, it is" }, { "docid": "12486298", "title": "", "text": "was taken from the doorpost of the car the appellant had been driving. The car was then towed to a garage and the appellant was taken into custody. The next day, two agents of the Federal Bureau of Investigation went to the garage and obtained the semi-confidential or “secret number” from the car. No search warrant was procured authorizing this search. The appellant’s motion to suppress the certificate of registration, the metal identification plate, and the secret number was heard by the trial court before the trial. As to the registration certificate and the metal identification plate, the motion was denied. The trial court, relying on Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), and Kelley v. United States, 111 U.S.App.D.C. 396, 298 F.2d 310 (1961), held that the actual arrest preceded the formal words of arrest and became complete when the appellant was stopped and searched. Under the circumstances, this ruling was correct. In the Henry case, although dealing with the problem in another context, the Court states: “The prosecution conceded below, and adheres to the concession here, that the arrest took place when the federal agents stopped the car. That is our view on the facts of this particular case. When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete.” (361 U.S. p. 103, 80 S.Ct. p. 171). The Supreme Court limited its holding to the case in question, but the reasoning is apposite here. In this case, the appellant was stopped by the officer, ordered from the car, and was searched. His liberty was restrained, and he undoubtedly felt that he was under arrest. The actual arrest took place at that time, although the formal words were not uttered until a few moments later. Thus, the arrest preceded the search and seizure of the certificate of registration and the metal plate, and if the arresting officer had probable cause to make the arrest, the contemporaneous search incidental thereto was reasonable and therefore lawful. The officer testified that he had" }, { "docid": "16645579", "title": "", "text": "bearing the license number given to them, parked in the driveway. Approaching the vehicle, Officer Deiro noted that the motor was making a noise similar to that made by a motor which is cooling. He felt the hood of the car and found it to be very warm. Officer Deiro and other officers then went to the front door and, in response to their knock, Hollins opened the door. He was clad only in a T-shirt and shorts. It was Officer Deiro’s opinion, upon seeing Hollins, that he was of the same general description as that of the robber, as given to him by the bank manager. Officer Deiro presented his identification and inquired if Hollins was the only one in the house. Hollins replied that his wife was in bed downstairs and that his wife’s daughter was in bed upstairs. The officer asked Hollins if he knew Bernice Newman, and Hollins replied that she was his wife. Officer Deiro thereupon arrested Hollins. He and the other officers then entered the house for the purpose of conducting a search. It was during this search that Officer Deiro obtained the information which he later revealed to the jury in the testimony which, Hollins asserts, should have been stricken. The fact, without more, that Officer Deiro may have been in possession of evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant, would not have entitled him to search these premises without a warrant. Aguilar v. Texas, 378 U.S. 108, 110-111, 84 S.Ct. 1509, 12 L.Ed.2d 723; Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436. But Officer Deiro arrested Hollins at the door of the residence before he and other officers entered to make the search. A lawful search may be made without a search warrant, if incident to a valid arrest. Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed. 2d 777; Cohen v. Norris, 9 Cir., 300 F.2d 24, 31. A valid arrest may be made without a warrant of arrest, if based upon probable cause. Ker" }, { "docid": "15308464", "title": "", "text": "The circumstances presented neither probable cause nor exigency excusing the application for a search warrant. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Simpson v. United States, 346 F.2d 291 (10th Cir. 1965); People v. Burke, 61 Cal.2d 575, 39 Cal.Rptr. 531, 394 P.2d 67 (1964). See also State v. Kent, Utah, 432 P.2d 64 (Sept. 1967). The evidence obtained from the second search was the knowledge that there was nothing under the seat of the car. When combined with the knowledge gained from the third search, which disclosed that there were tools under the seat at that time, this evidence formed a vital part of the case against petitioner. Mere information may constitute fruits of an illegal search which are constitutionally tainted. Simpson v. United States, 346 F.2d 291 (10th Cir. 1965). Cf. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). See also Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, and Clewis v. State of Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967). The third search and the arrest involve other problems. The officers made the arrest of the petitioner for “vagrancy”. The presence of a defendant in an automobile early in the morning even though accompanied by another person known to have been charged on another occasion with burglary, did not alone constitute probable cause for such an arrest. By this time the arresting officer had learned that the automobile was properly registered. If the search were incident to the arrest, the arrest was precipitated by the first and second searches which were illegal. The facts here are similar in some respects to those in Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), where the court said: “The constitutional validity of the search in this case, then, must depend upon the constitutional validity of the petitioner’s arrest. Whether that arrest was constitutionally valid depends in turn upon" }, { "docid": "885108", "title": "", "text": "At the suppression hearing a witness, Bill Temps, was called to verify his reporting the vehicle in early November as the one used by two black males who were observed leaving the scene of a burglary. The evidence showed that the “wanted” label for the auto should have been removed from the police computer lists since the individuals wanted for the burglary had been apprehended before November 26, 1973, the date of defendant’s arrest. . It was only after the weapon was found that the officers announced their intent to arrest all of the subjects on the charge of possession of the weapon as well as their intent to arrest the driver for the traffic violations. . Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). . Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). . The fact that the vehicle was no longer actually “wanted” is immaterial to the officers’ state of mind at the time the information was given to them. A police officer is entitled to view information supplied via police radio as a trustworthy basis for his actions. Klingler v. United States, 409 F.2d 299, 303 (8th Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969). . Robinson and Gustafson permit the search of the person incident to a custodial arrest not only on the basis of possible subjective fear of the arresting officer, but on well-established principles governing a search incident to lawful arrest. As the Supreme Court observed in Robinson: A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment. 414 U.S. at 235," }, { "docid": "7766729", "title": "", "text": "arrest. Pollatie had reason to believe that the Mercury parked in front of Room 13 was that which Hertz reported as stolen. Its color, year, make, and what Pollatie could make out of the serial number on the rear view mirror corresponded with information he had; the Motel manager had told Pollatie that one of the two men in the party had registered under the name of John T. Demoss and that all of them arrived in the Mercury; and the Cincinnati newspapers in the rear of the car suggested that it had recently crossed the Tennessee State line. The test is whether a reasonable man, given all the facts available to Pollatie, would have believed that a crime had been committed by Kucinich. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). We accept Appellants’ contention that the search of the Mercury took place at a time too remote from Kucinieh’s arrest. But resting as it must on Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), it can rise no higher than the constitutional protection of privacy there spelled out. When the search of the car took place in Preston, Petitioners were under arrest in the police station and the car was also in police custody. Recognizing that police can, upon a valid arrest, make a contemporaneous search of the person which may extend to things under his immediate control and to an extent to the place where he was arrested, the Court held that the necessity for such a search was absent since the Petitioners and the car were both under police custody. In Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1966), another case involving the seizure of evidence from an automobile some time after the arrest of its occupant, the Court discussed the constitutional premise on which Preston was based, saying: “the search [in Preston] was therefore to be treated as though [the] car was in [.Preston’s] or his agent’s possession.” (Emphasis added). The Court went on to say that the" }, { "docid": "16645580", "title": "", "text": "of conducting a search. It was during this search that Officer Deiro obtained the information which he later revealed to the jury in the testimony which, Hollins asserts, should have been stricken. The fact, without more, that Officer Deiro may have been in possession of evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant, would not have entitled him to search these premises without a warrant. Aguilar v. Texas, 378 U.S. 108, 110-111, 84 S.Ct. 1509, 12 L.Ed.2d 723; Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436. But Officer Deiro arrested Hollins at the door of the residence before he and other officers entered to make the search. A lawful search may be made without a search warrant, if incident to a valid arrest. Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed. 2d 777; Cohen v. Norris, 9 Cir., 300 F.2d 24, 31. A valid arrest may be made without a warrant of arrest, if based upon probable cause. Ker v. California, 374 U.S. 23, 34-35, 83 S.Ct. 1623, 10 L.Ed.2d 726. Probable cause to arrest a person exists where the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information, pri- or to the search, are sufficient in themselves to warrant a man of reasonable caution in believing that an offense has been or is being committed by such person. Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879. At the time Officer Deiro arrested Hollins he had trustworthy information that the bank had been robbed not much over an hour previously by a man having an appearance generally similar to that of Hollins. He also then had trustworthy information that the robber had fled in a car of the same make and description, and bearing the same license number, as the car parked in the driveway of the home where Hollins answered a knock at the door. The officer then had good reason to believe that the automobile in the driveway had" }, { "docid": "885107", "title": "", "text": "denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973). In addition to strong circumstantial evidence, the driver testified that the defendant was the owner of the gun. (f) The government attorney used prejudicial comments in his closing argument. The comments were objected to and the court sustained the objections and instructed the jury to disregard them. The comments were (1) that Miss White, the defendant’s witness, was the defendant’s girlfriend, and (2) that sawed-off shotguns could be classified with “machine guns, grenades, and bazookas.” The comments do not constitute such prejudice that a jury would be likely to be unduly influenced by them. No motion for mistrial was made and the court’s charge under the circumstances was all that was required. (g) The court erred in admitting into evidence two shotgun shells without proper identification as to which was found in the defendant’s pocket and which was found in the gun. The defendant stipulated that they were the two shells seized at the time of the arrest. We find this argument spurious. . At the suppression hearing a witness, Bill Temps, was called to verify his reporting the vehicle in early November as the one used by two black males who were observed leaving the scene of a burglary. The evidence showed that the “wanted” label for the auto should have been removed from the police computer lists since the individuals wanted for the burglary had been apprehended before November 26, 1973, the date of defendant’s arrest. . It was only after the weapon was found that the officers announced their intent to arrest all of the subjects on the charge of possession of the weapon as well as their intent to arrest the driver for the traffic violations. . Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). . Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). . The fact that the vehicle was no longer actually “wanted” is immaterial to the officers’ state of mind at the time the information was given to them. A police" }, { "docid": "818610", "title": "", "text": "for in the latter circumstances the law officers are confronted with a mobility factor. Preston v. United States, 376 U.S. 364, 366, 84 S.Ct. 881, 11 L.Ed.2d 777 (1963); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1924). In the principal case there was no chance of the auto being driven away, for Appellants were enroute to the station house at the time of the search. Preston v. United States, supra. This Court does not believe that the mobility factor is necessary to justify this search which was incident to a lawful arrest. As in Rabinowitz, supra, we must- look to the particular facts and circumstances to determine the reasonableness of the search and seizure. United States ex rel. Mahoney v. LaVallee, 396 F.2d 887 (2d Cir.1968). Appellants also claim that the search was not contemporaneous with the arrest and therefore could not be justified as being incidental to that arrest. We are not faced with a situation where Appellants had already been booked at the station house or where the search was made at a place other than where the arrest took place. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), reh. denied 386 U.S. 988, 87 S.Ct. 1283, 18 L.Ed.2d 243 (1967) ; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); United States ex rel. Nickens v. LaVallee, 391 F.2d 123 (2d Cir.1968). Nor are we faced with a search which is completely unrelated to the arrest. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1963). See Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), reh. denied 386 U.S. 988, 87 S.Ct. 1283, 18 L.Ed.2d 243 (1967). Here the automobile had not been moved from the situs of the arrest and the Appellants were just being taken away. In the cases holding a search as not being incident to an arrest, the arresting officers had gone to" }, { "docid": "20930147", "title": "", "text": "had two injections of narcotics recently and a urine sample was taken from him. Analysis of the urine disclosed that it contained morphine and quinine. Analysis of the can of milk sugar also revealed traces of morphine. Conclusions of Law Ultimately, petitioner’s claim that his conviction was in violation of due process because obtained by introducing unconstitutionally seized evidence depends upon whether or not Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) is applicable. The preliminary question is whether the conduct of the officers violated the fourth amendment. See Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963) (opinion of Clark, J.). The amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The reasonableness of search depends in the first instance on the presence of either a valid arrest upon probable cause, Ker v. California, supra, 374 U.S. at 34-35, 83 S.Ct. 1623, 10 L.Ed.2d 726 (opinion of Clark, J.), or a valid search warrant. Neither existed here. Although the information received from the informers was sufficient to identify the petitioner, it was not sufficient to establish probable cause to believe that the petitioner had committed or was then committing a crime. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). That he had sought to buy gelatin capsules and milk sugar was not a crime. Nor would the added fact that he had associated with known narcotic users constitute any crime. Even assuming arguendo that the initial detention constituted a valid arrest upon probable cause, the search extended beyond the area of permissible search incident to arrest. The permissible scope of incidental search and its underlying rationale have been stated most recently by the Supreme Court in Preston v. United States, 84 S.Ct. 881: “Unquestionably," }, { "docid": "8906577", "title": "", "text": "a hotel. The officers were both out of the car when appellant was asked if he was carrying a weapon. The officers testified that appellant abruptly stepped back and reached for his right coat pocket. One of the policemen immediately grabbed his arm while the other pulled his service revolver, and appellant stated, “I’ll get it. I’ll get it.” The officer removed the weapon from appellant’s jacket pocket, and effected his arrest for carrying a concealed weapon in violation of Missouri law. Subsequently, appellant was charged under federal law pursuant to Tit. 15 U.S.C. § 902(e). On the motion to suppress, appellant testified that the officer driving the car got out with his pistol drawn before appellant was asked about the weapon. This was denied by the police. Appellant agreed he did step back, at first saying he did so because he did not want the officers to know about the gun. Later on cross-examination he stated he did it in order to drop his gun to the ground. Judge Meredith, the able and learned trial judge, denied the motion to suppress, holding that defendant’s version was not credible, and that there existed probable cause for the arrest. The critical question arises as to when the arrest of appellant took place. Appellant claims the arrest was illegal, since it took place at the time he was first detained and without probable cause. The government observes, however, that the arrest did not occur at the time of the preliminary questioning. The officers state the arrest took place at the time appellant reached for his pocket and made an abrupt and dangerous move. This movement took place when Dupree was asked by the officers whether he was carrying a weapon. If the search and seizure was not remote but incident to a legal arrest, the evidence obtained is admissible. Compare Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) with Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). See also Schook v. United States, 337 F.2d 563 (8 Cir. 1964);" }, { "docid": "14231141", "title": "", "text": "also testified that while he talked with Genovese, another man was waiting in a black and white Cadillac with a Miami souvenir plate on the front. The Norfolk police were summoned to the Charco-Burger. They determined that the bill was counterfeit and, while there, received word that a similar bill had been passed at a nearby pharmacy. Soon thereafter, a black and white Cadillac bearing a Miami souvenir plate was discovered parked on a Norfolk street and was placed under surveillance. A short time later Genovese and Trotta approached the car, entered it, and began backing up. At that point, the police arrested both men and began a search of the car. As soon as the men had been frisked and warned of their rights, they were taken away, but the search of the car continued. After the departure of Genovese and Trotta, but within forty-five to sixty minutes, the search produced an envelope containing counterfeit bills and a paper bag of genuine currency. The defendants’ assertion that the war-rantless search of their car was illegal is, we think, wholly without merit. In Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), and Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), cars were searched after the defendants had been arrested and after the cars had been taken into custody and removed from the scene. In Preston the Court pointed out that the search was “too remote in time or place to have been made as incidental to the arrest”, and held the search illegal. 376 U.S. at 368, 84 S.Ct. at 884. However, it was made quite clear that the right of the police, without a search warrant, to make a contemporaneous search pursuant to a lawful arrest “extends to things under the accused’s immediate control * * * and, to an extent depending on the circumstances of the case, to the place where he is arrested.” 376 U.S. at 367, 84 S.Ct. at 883. In Cooper, on the other hand, the search was upheld on the basis" }, { "docid": "818611", "title": "", "text": "with a situation where Appellants had already been booked at the station house or where the search was made at a place other than where the arrest took place. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), reh. denied 386 U.S. 988, 87 S.Ct. 1283, 18 L.Ed.2d 243 (1967) ; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); United States ex rel. Nickens v. LaVallee, 391 F.2d 123 (2d Cir.1968). Nor are we faced with a search which is completely unrelated to the arrest. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1963). See Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), reh. denied 386 U.S. 988, 87 S.Ct. 1283, 18 L.Ed.2d 243 (1967). Here the automobile had not been moved from the situs of the arrest and the Appellants were just being taken away. In the cases holding a search as not being incident to an arrest, the arresting officers had gone to the station house and returned to the scene of the arrest to search, had conducted searches in areas not within the immediate control of appellant, or larger time lapses had occurred between the arrest and search. Although the Appellants had been arrested prior to the making of the search, Appellants had not arrived at the station house and been booked as was the case in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1963), and United States ex rel. Nickens v. LaVallee, 391 F.2d 123 (2d Cir. 1968). Crawford v. Bannan, 336 F.2d 505 (6th Cir.1964), cert. denied 381 U.S. 955, 85 S.Ct. 1807, 14 L.Ed.2d 727 (1965), rehearing denied 382 U.S. 873, 86 S.Ct. 12, 15 L.Ed.2d 116 (1965). The record as a whole substantiates that the officers conducting the search had reasonable or probable cause to believe that nontax-paid whiskey would be found. United States v. Freeman, 382 F.2d 272 (6th Cir.1967). See Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed. 2d" }, { "docid": "908369", "title": "", "text": "which reasonable and prudent men, not legal technicians act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). The detention of a person need not be accompanied by formal words of arrest or station house booking in order to constitute an “arrest” requiring probable cause under the Fourth Amendment. Davis v. Mississippi, 394 U.S. 721, 726-27, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969); United States v. Brunson, 549 F.2d 348 (5th Cir. 1977). Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) teaches that under the Fourth Amendment whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person. Id., at 16, 88 S.Ct. at 1877; Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959); United States v. Preston, 608 F.2d 626 (5th Cir. 1979), cert. den., 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 794 (1980). None of the parties here seriously contend that the seizure of the petitioner was less than an arrest. Having once been handcuffed and placed in a police car his freedom to choose whether or not to continue his encounter with the police had been extinguished. The information available to the arresting officers was not sufficient to warrant a reasonable person’s belief that petitioner committed the offense or might have information about its commission. The District Court’s finding of no probable cause to arrest is fully supported. Petitioner then contends in ground four that this arrest without probable cause invalidates the evidence acquired as an immediate and proximate result of that arrest as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). Specifically, petitioner challenges as “fruits” the photographs taken of him on the night of the crime and the show up identification made by Cara O’Brien, also on the night of the crime. The exclusionary rule bars evidentiary fruit obtained “as a direct result” of an illegal search or seizure. However, its bar" } ]

[ { "docid": "21166184", "title": "", "text": "at 446-47. . Louis Vuitton's Memorandum of Law in Support of Motion for Reconsideration at 1-2 (emphasis added). Accord PL Mem. at 9. . See PL Mem. at 9. Louis Vuitton relies on the Second Circuit’s recent decision in Starbucks Corp. v. Wolfe's Borough Coffee, 477 F.3d 765 (2d Cir.2007), for the proposition that the “likely to cause dilution” standard can be applied to pre-TDRA conduct. See Pl. Mem. at 9. But Starbucks is inapposite because that case addressed the effect of the TDRA on a plaintiff’s right to injunctive relief. See 477 F.3d at 766 (expressly stating that the recently enacted “likely to cause dilution” standard applied to defendant’s pre-October 6, 2006 conduct only “to the extent that [plaintiff] has sought injunctive relief on the issue of dilution” (citing Havana Club Holding, S.A. v. Galleon S.A., 203 F.3d 116, 129 (2d Cir.2000)), for the proposition that when seeking prospective relief there is no issue of retroactivity because the conduct to be enjoined is, by definition, prospective). Congress's intention that the October 6, 2006 cutoff date apply to monetary relief for dilution, but not to injunctive relief, is also readily apparent from the sentence structure of the TDRA. The first sentence of subsection 1125(c)(5), which provides for injunctive relief, lacks any reference to the explicit date restriction contained in the second sentence, which addresses monetary relief. . See Def. Reply Mem. at 5 (citing 15 U.S.C. § 1125(c)(5)). . PI. Mem. at 17-18. . See Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (\"[Wjhen a case implicates a federal statute enacted after the events giving rise to the suit, a court’s first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, there is no need to resort to judicial default rules.”); Martin v. Hadix, 527 U.S. 343, 352, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999) (where a clear \"congressional directive on the temporal reach of a statute” exists, a court’s proper role is to apply the directive without further inquiry); Guaylupo-Moya v. Gonzales," } ]

[ { "docid": "21205873", "title": "", "text": "and dilution by tarnishment; and an expanded set of exclusions. This lawsuit was filed on August 21, 2006, several months before the effective date of the TDRA. Under the TDRA, Tempur-Pedic would be entitled only to injunctive relief on its dilution claim, and not to the other remedies set forth in sections 1117(a) and 1118 of title 15 of the United States Code. See 15 U.S.C. § 1125(c)(5). See also Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 477 F.3d 765, 766 (2d Cir.2007) (holding that the TDRA prospectively applied to a claim filed before the statute went into effect \"to the extent that [the plaintiff] has sought injunctive relief on the issue of dilution”) (emphasis added). To the extent that Tempur-Pedic seeks monetary relief for its dilution claim, the FTDA standard for obtaining remedies other than injunctive relief still governs. See Malletier v. Dooney & Bourke, Inc., No. 04 Civ. 2990, 2007 WL 1222589, at *3-4 (S.D.N.Y. April. 24, 2007) (\"The second sentence of subsection 1125(c)(5), entitling owners of famous marks to dilution damages, contains an unambiguous date restriction that authorizes the application of the 'likelihood of dilution' standard as a basis for recovering damages to civil actions where the diluting mark or trade name was first introduced in commerce after October 6, 2006 .... Congress did not intend that the relaxed evidentiary standard would apply retroactively.”). Under the FTDA, in order to obtain the remedies set forth in section 1117(a) of title 15 of the United States Code, Tempur-Pedic must still show actual dilution, in addition to the wilfulness requirement retained by the TDRA, for claims of monetary relief. See id. at *2, 3. . 15 U.S.C. § 1125(c)(1) (emphasis added). . 537 U.S. 418, 433, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003) (holding that the text of the FTDA \"unambiguously requires a showing of actual dilution, rather than a likelihood of dilution.”). . 15 U.S.C. § 1125(c)(2)(A). The FTDA did not contain the phrase \"widely recognized by the general consuming public of the United States” in its definition of \"famous.” Its inclusion in the TDRA was intended to" }, { "docid": "10751666", "title": "", "text": "to describing coffee.” Dr. Mitofsky testified that the surveyed sample of persons were “designed to be representative of the United States” and that he believed a telephone survey of 600 adults in the United States would “do a good job of random sampling.” Dr. Mitofsky summarized the scope of his survey: “Well, if you want to know the reaction to the name Charbucks, then the telephone is perfectly adequate. If you want to measure the reaction or the familiarity with other visual cues, then it’s not the right method.” On December 22, 2005, the District Court issued an opinion and order ruling in favor of Black Bear and dismissing Starbucks’ complaint. Among its findings, the court determined that there was neither actual dilution to establish a violation of the federal trademark laws nor any likelihood of dilution to establish a violation of New York’s trademark laws. The court also found that Starbucks failed to prove its trademark infringement and unfair competition claims because there was no likelihood that consumers would confuse the Charbucks Marks for the Starbucks Marks. C. Subsequent Proceedings Starbucks appealed the District Court’s judgment, and, while the appeal was pending, Congress amended the trademark laws by passing the Trademark Dilution Revision Act of 2005 (the “TDRA”). See Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 477 F.3d 765, 766 (2d Cir.2007) (per curiam). The TDRA was in response to the Supreme Court’s decision in Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 433, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003), in which the Supreme Court held that the Federal Trademark Dilution Act required a showing of “actual dilution” in order to establish a dilution claim. See Starbucks Corp., 477 F.3d at 766. The TDRA amended the Federal Trademark Dilution Act to provide, inter alia, that the owner of a famous, distinctive mark is entitled to an injunction against the use of a mark that is “likely” to cause dilution of the famous mark. 15 U.S.C. § 1125(c)(1). In light of the change in law, we vacated the judgment of the District Court and remanded for further proceedings." }, { "docid": "21205875", "title": "", "text": "reject dilution claims based on \"niche” fame, i.e. \"fame limited to a particular channel of trade, segment of industry or service, or geographic region.\" Christopher D. Smithers Found., Inc. v. St. Luke’s-Roosevelt Hosp. Ctr., No. 00 Civ. 5502, 2003 WL 115234, at *5 (S.D.N.Y. Jan. 13, 2003). BNB has not contested the geographic reach of the TEMPUR-PEDIC® mark, and the issue of \"niche” fame is not implicated. Therefore, use of the TDRA's fame factors in analyzing Tempur-Pedic’s dilution claim for non-injunctive relief does not implicate the same retroactivity question raised by use of the changed standard of proof for dilution claims. The Second Circuit's requirement that \"the senior mark [must] be truly famous before a court will afford the owner of the mark the vast protections of the FTDA” remains unchanged by the TDRA’s reconfiguration of the fame factors to reject both \"niche” fame and the requirement of inherent distinctiveness. Savin Corp. v. Savin Group, 391 F.3d 439, 449 (2d Cir.2004). . 15 U.S.C. § 1125(c)(2)(A). . Id. . Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 507 (2d Cir.1996). Accord New York Stock Exch., Inc. v. N.Y., N.Y. Hotel, LLC, 293 F.3d 550, 558 (2d Cir.2002). . Hormel, 73 F.3d at 507 (citations omitted) (noting that \"tarnishment is not limited to seamy conduct.”). . Id. (citations omitted). . Id. Because the definition of tarnishment in the TDRA is not substantively different from Second Circuit tarnishment law under the FTDA, I use the language of the TDRA in discussing tarnishment as it applies to Tem-pur-Pedic’s claim under both the TDRA and the FTDA. . See Starbucks, 477 F.3d at 766. See also Malletier, at 279-81, 2007 WL 1222589, *2-3. . 537 U.S. at 433, 123 S.Ct. 1115. . Id. at 434, 123 S.Ct. 1115. . Savin, 391 F.3d at 452. . Id. at 453. For example, \"a store owner who loses a 7-Eleven franchise yet continues to use the famous '7-Eleven' mark, in so doing, violates the FTDA and may be enjoined thereunder from using the mark.” Id. at 452-53. . J. Thomas McCarthy, 5 McCarthy on" }, { "docid": "10751667", "title": "", "text": "the Starbucks Marks. C. Subsequent Proceedings Starbucks appealed the District Court’s judgment, and, while the appeal was pending, Congress amended the trademark laws by passing the Trademark Dilution Revision Act of 2005 (the “TDRA”). See Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 477 F.3d 765, 766 (2d Cir.2007) (per curiam). The TDRA was in response to the Supreme Court’s decision in Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 433, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003), in which the Supreme Court held that the Federal Trademark Dilution Act required a showing of “actual dilution” in order to establish a dilution claim. See Starbucks Corp., 477 F.3d at 766. The TDRA amended the Federal Trademark Dilution Act to provide, inter alia, that the owner of a famous, distinctive mark is entitled to an injunction against the use of a mark that is “likely” to cause dilution of the famous mark. 15 U.S.C. § 1125(c)(1). In light of the change in law, we vacated the judgment of the District Court and remanded for further proceedings. Starbucks Corp., 477 F.3d at 766. In so doing, we noted that “[although the district court also considered whether Starbucks had shown a likelihood of dilution under New York Gen. Bus. Law § 360-l, it is not clear that that statute is coextensive with the amended statute.” Id. On remand, the District Court accepted additional briefing from both parties. Both parties agreed that no further evidentiary proceedings were required. On June 5, 2008, the District Court again en tered judgment in favor of Black Bear, finding — for substantially the same reasons detailed in the court’s December 2005 decision but with additional analysis with respect to the federal dilution claim — that Starbucks failed to demonstrate an entitlement to relief on its federal and state claims. Starbucks timely appealed the District Court’s June 5, 2008 judgment. On appeal, Starbucks primarily argues (1) that the District Court erred in finding that the Charbucks Marks are not likely to dilute the Starbucks Marks under federal and state law; and (2) that the District Court erred in its" }, { "docid": "19769565", "title": "", "text": "PER CURIAM. Plaintiffs-eounter-defendants-appellants Starbucks Corporation and Starbucks U.S. Brands, L.L.C. (collectively, “Starbucks”) brought suit in the United States District Court for the Southern District of New York (Swain, J.) against defendant-coun-terclaimant-appellee Wolfe’s Borough Coffee, Inc. (“Wolfe’s”). Starbucks alleged that Wolfe’s current sale of coffee under the name “Mister Charbucks” or “Mr. Charbucks” infringes and dilutes the “Starbucks” trademark for coffee. Following a bench trial, the District Court concluded, in an Order filed December 23, 2005, that Starbucks had failed to carry its burden of proving trademark infringement and unfair competition under the Lanham Act, common law unfair competition, or trademark dilution under either the Federal Trademark Dilution Act (“FTDA”), 15 U.S.C. §§ 1125(c), 1127, or New York Gen. Bus. Law § 360-1. Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 2005 WL 3527126 (S.D.N.Y. Dec.23, 2005). From the ensuing judgment, Starbucks appeals. Subsequent to the district court’s order, Congress amended the FTDA in response to the Supreme Court’s decision in Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 433, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003), which had construed the FTDA to require a showing of actual dilution, as opposed to a likelihood of dilution. The FTDA, as amended effective October 6, 2006, entitles the owner of a famous, distinctive mark to an injunction against the user of a mark that is “likely to cause dilution” of the famous mark. 15 U.S.C. § 1125(c)(1) (hereinafter, the “amended statute”). The amended statute applies to this case to the extent that Starbucks has sought injunctive relief on the issue of dilution. See Havana Club Holding, S.A. v. Galleon S.A., 203 F.3d 116, 129 (2d Cir.2000) (applying intervening statute where plaintiff sought injunc-tive relief because “when an ‘intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive.’ ” (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 273, 114 S.Ct. 1483 (1994))); Sporty’s Farm L.L.C. v. Sportsman’s Market, Inc., 202 F.3d 489, 502 (2d Cir.2000)(finding no retroactivity problem where injunction would do no more than avoid continuing harm of cybersquatting); see also Am. Steel Foundries" }, { "docid": "16924889", "title": "", "text": "commerce than plaintiff's goods, and thus do not cause any likelihood of confusion. See TCPIP Holding Co., 244 F.3d at 95. . In addition, the TDRA required that the defendant show \"use in commerce,” rather than the FTDA’s \"commercial use of the mark in commerce.\" See Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108, 118 (2d Cir.2006) (quoting Savin Corp., 391 F.3d at 448-49). .To the extent that Tiffany seeks monetary damages on its dilution claim, however, the FTDA's standard of \"actual dilution” continues to apply. The TDRA includes a clear date restriction that authorizes the application of the \"likelihood of dilution” standard as a basis for recovering damages to civil actions where the diluting mark or trade name was first introduced in commerce after October 6, 2006. See 15 U.S.C. § 1125(c)(5). In short, Congress has unambiguously stated that the TDRA does not apply retroactively to the extent that plaintiffs seek damages. See Louis Vuitton Malletier v. Dooney & Bourke, Inc., 500 F.Supp.2d 276, 283 (S.D.N.Y.2007). Accordingly, under the FTDA, in order to obtain monetary damages, Tiffany would still have to show actual dilution, in addition to the wilfulness requirement retained by the TDRA, for claims of monetary relief. See Verilux, Inc. v. Hahn, No. 3:05cv254 (PCD), 2007 U.S. Dist. LEXIS 58507, at *36-37, 2007 WL 2318819, at *12-13 (D.Conn.2007); Dan-Foam A/S & Tempur-Pedic, Inc. v. Brand Named Beds, LLC, 500 F.Supp.2d 296, 306 (S.D.N.Y.2007)." }, { "docid": "6466486", "title": "", "text": "the goddess, not the mollusk. . To imply that the parties have carried on sustained argument about the plaintiff's trademark dilution claims would overstate things. Miss Universe moved for summary judgment on all its claims except dilution, and its papers barely touch on dilution, much less argue it in any detail. The defendants did move for summary judgment on the plaintiff's dilution claims, but their arguments are nearly as sparse as Miss Universe’s. . The defendants claim that the Court should apply a previous version of the federal dilution statute that required a showing of actual dilution, because its rights to the trademark vested prior to either the FTDA's or the TDRA’s passage. The Court disagrees. After this action was commenced, Congress amended the FTDA to, among other things, replace the \"actual dilution” requirement with a \"likely dilution” one. Pub.L. No. 109-312, 120 Stat. 1730. The Second Circuit has clearly held that an injunction issued for an FTDA violation presents \"no retroactivity problem” because it \"provide[s] only prospective relief.” Sporty’s Farm L.L.C. v. Sportsman's Market, Inc., 202 F.3d 489, 502 (2d Cir.2000). Moreover, the Second Circuit has applied the TDRA retroactively to a case commenced in 2005. See Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 477 F.3d 765," }, { "docid": "12510122", "title": "", "text": "of messages sent by Shokan. Considering the strength of the AUDI® mark, that Defendants’ use is identical to Plaintiffs’ mark, and that the parties are in competitive proximity, the court finds as a matter of law that Defendants’ use of the email signature block, “Shokan Audi Parts” creates a likelihood of consumer confusion. Accordingly, Plaintiffs’ motion for summary judgment is granted and Defendants’ motion for summary judgment is denied, regarding Plaintiffs’ infringement claim as it relates to the signature block, “Shokan Audi Parts.” F. Trademark and Trade Dress Dilution The Federal Trademark Dilution Act (“FTDA”),' which was amended effective October 6,' 2006 to become the Trademark Dilution Revision Act (“TDRA”), codified at 15 U.S.C. § 1125(c), creates a cause of action for trademark dilution as follows: [T]he owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner’s mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury. 15 U.S.C. § 1125(c)(1) (2007). Thus in order to establish a claim for trademark dilution under the FTDA, a plaintiff must prove that (1) its mark is famous; (2) the defendant is making commercial use of the mark in commerce; (3) the defendant’s use began after the mark became famous; and (4) the defendant’s use of the mark dilutes the quality of the mark by , diminishing the capacity of the mark to identify and distinguish goods and services. Savin Corp. v. Savin Group, 391 F.3d 439, 451 (2d Cir.2004). See also § 1125(c)(1). Although the present action was filed before the TDRA became effective, the Second Circuit has held that where a plaintiff is seeking injunctive relief, the amended Act, including its requirement that a plaintiff prevail where the use is likely to cause dilution, is retroactive to pre-TDRA conduct. See Starbucks Corp. v. Wolfe’s" }, { "docid": "16924888", "title": "", "text": "trademark infringement claims. In a classic trademark infringement claim, the owner of a mark may bar another from using a mark in a manner that creates a likelihood of consumer confusion as to the source of goods. See 15 U.S.C. § 1125(a). Thus, \"as a general proposition, under traditional trademark law, a mark is enforceable within the area of commerce in which the mark has been established. However, its establishment in one segment of commerce generally does not prevent others from using the same or a similar mark in a different, non-competing area\" because \"ordinarily, little confusion will result when the junior use is in an area of commerce that is outside the senior owner's area.” TCPIP Holding, 244 F.3d at 94-95. By contrast, federal anti-dilution law permits the owner of a qualified, famous mark to enjoin junior uses throughout commerce, regardless of the absence of competition or confusion. See 15 U.S.C. § 1125(c)(1). Specifically, this means that trademark dilution can be found even when the defendant’s goods are in a wholly different area of commerce than plaintiff's goods, and thus do not cause any likelihood of confusion. See TCPIP Holding Co., 244 F.3d at 95. . In addition, the TDRA required that the defendant show \"use in commerce,” rather than the FTDA’s \"commercial use of the mark in commerce.\" See Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108, 118 (2d Cir.2006) (quoting Savin Corp., 391 F.3d at 448-49). .To the extent that Tiffany seeks monetary damages on its dilution claim, however, the FTDA's standard of \"actual dilution” continues to apply. The TDRA includes a clear date restriction that authorizes the application of the \"likelihood of dilution” standard as a basis for recovering damages to civil actions where the diluting mark or trade name was first introduced in commerce after October 6, 2006. See 15 U.S.C. § 1125(c)(5). In short, Congress has unambiguously stated that the TDRA does not apply retroactively to the extent that plaintiffs seek damages. See Louis Vuitton Malletier v. Dooney & Bourke, Inc., 500 F.Supp.2d 276, 283 (S.D.N.Y.2007). Accordingly, under the FTDA, in" }, { "docid": "12510125", "title": "", "text": "standard of the TDRA, but the actual dilution standard under the FTDA may be applied to Plaintiffs’ dilution claim insofar as they seek monetary damages. See Malletier, 500 F.Supp.2d at 283 (finding that plaintiff “will [] not reap monetary remedies absent a showing of actual dilution.”). According to the TDRA, for a mark to be considered famous, it must be “widely recognized by the general consuming public of the United States as a source of the goods or services of the mark’s owner.” § 1125(c)(2)(A). In order to decide whether a mark is famous, a court may consider all of the following factors: (i)The duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties. (ii) The amount, volume, and geographic extent of sales of goods or services offered under the mark. (iii) The extent of actual recognition of the mark. (iv) Whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register. Id. Regarding distinctiveness, a court may deem a mark to be inherently distinct where, as here, the mark is incontestible. Savin Corp., 391 F.3d at 451 (noting that “Honda” or “Acura” are “obviously distinctive”). Once a court determines that the “famous” element is satisfied, actual dilution may be presumed where the mark used is identical to the plaintiffs trademark. Id. at 452-53 (finding that “where a plaintiff who owns a famous senior mark can show the commercial use of an identical junior mark, such a showing constitutes circumstantial evidence of the actual-dilution element of an FTDA claim.”). See also Dan-Foam A/S v. Brand Named Beds, LLC, 500 F.Supp.2d 296, 308 (S.D.N.Y.2007). Plaintiffs here argue that their marks are famous, noting the length of time of their registration, their multi-mil-lion dollar international marketing campaign, and the large amount, volume and geographic extent of sales. See Audi, AG v. D'Amato, 469 F.3d 534, 543 (6 th Cir.2006) (finding Audi trademarks recognizable and widely known, thus famous). See also Scipione Decl. at ¶¶ 4-9, Dkt. No." }, { "docid": "16924852", "title": "", "text": "14, 2004, it did so under the Federal Trademark Dilution Act (“FTDA”), 15 U.S.C. § 1125(c) (2004). After the Amended Complaint had been filed, Congress enacted the Trademark Dilution Revision Act of 2006 (“TDRA”), Pub.L. No. 109-312, 120 Stat. 1730, 1731 (Oct. 6, 2006), which entitles the owner of a famous, distinctive mark to an injunction against the user of a mark that is “likely to cause dilution” of the famous mark. 15 U.S.C. § 1125(c)(1). Congress thus overruled the Supreme Court’s holding in Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 433, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003), that the FTDA requires a showing of “actual dilution,” and reasserted the less stringent “likelihood of dilution” standard to dilution cases. The Second Circuit has held that the TDRA applies retroactively to a claim filed before the TDRA went into effect to the extent that the plaintiff seeks injunctive relief. See Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 477 F.3d 765, 766 (2d Cir.2007). Because Tiffany seeks injunctive relief, the TDRA is applicable to its claims. The TDRA provides that: Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired dis tinctiveness, shall be entitled to an injunction against another person who, at any time after the owner’s mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury. 15 U.S.C. § 1125(c)(1). Under the TDRA, therefore, to establish a violation of the Act, a plaintiff must show that: (1) its mark is famous; (2) the defendant is making use of the mark in commerce; (3) the defendant’s use began after the mark became famous; and (4) the defendant’s use is likely to cause dilution by tarnishment or dilution by blurring. New York’s dilution cause of action is substantially similar. Under New York General Business Law § 360 — Z, “[l]ikeli-hood of injury" }, { "docid": "21205872", "title": "", "text": "of the mark, of the registrant's ownership of the mark, and of the registrant’s exclusive right to use the registered mark in commerce .... ”). . See Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir.1961). . Brennans, Inc. v. Brennan's Restaurant, L.L.C, 360 F.3d 125, 130 (2d Cir.2004) (citing Polaroid, 287 F.2d at 495). . Id. (quoting Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 872 (2d Cir.1986)). . See 15 U.S.C. § 1125(c). The TDRA became effective on October 6, 2006, replacing the Federal Trademark Dilution Act of 1996 (\"FTDA”). Specific changes to federal dilution law under the TDRA include the establishment of a \"likelihood of dilution” standard for dilution claims, rather than an \"actual dilution” standard; a provision that non-inherently distinctive marks may qualify for protection; a reconfiguration of the factors used to determine whether a mark is famous for dilution purposes, including a rejection of dilution claims based on \"niche” fame; the specification of separate and explicit causes of action for dilution by blurring and dilution by tarnishment; and an expanded set of exclusions. This lawsuit was filed on August 21, 2006, several months before the effective date of the TDRA. Under the TDRA, Tempur-Pedic would be entitled only to injunctive relief on its dilution claim, and not to the other remedies set forth in sections 1117(a) and 1118 of title 15 of the United States Code. See 15 U.S.C. § 1125(c)(5). See also Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 477 F.3d 765, 766 (2d Cir.2007) (holding that the TDRA prospectively applied to a claim filed before the statute went into effect \"to the extent that [the plaintiff] has sought injunctive relief on the issue of dilution”) (emphasis added). To the extent that Tempur-Pedic seeks monetary relief for its dilution claim, the FTDA standard for obtaining remedies other than injunctive relief still governs. See Malletier v. Dooney & Bourke, Inc., No. 04 Civ. 2990, 2007 WL 1222589, at *3-4 (S.D.N.Y. April. 24, 2007) (\"The second sentence of subsection 1125(c)(5), entitling owners of famous marks to dilution damages, contains" }, { "docid": "16924854", "title": "", "text": "to business reputation or of dilution of the distinctive quality of a mark or trade name shall be a ground for injunc-tive relief in cases of infringement of a mark registered or not registered or in eases of unfair competition, notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services.” N.Y. Gen. Bus. L. § 360 — Z (McKinney’s 2007). Prior to the enactment of the TDRA, state and federal dilution claims were viewed as analogous. See Louis Vuitton Malletier, 454 F.3d at 119 (applying same standards to federal and New York dilution standards); Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208, 215 n. 1 (2d Cir.1999) (stating that federal and New York dilution statutes are “analogous”); NBA Props. v. Untertainment Records LLC, No. 99 Civ. 2933(HB), 1999 U.S. Dist. LEXIS 7780, at *21, 1999 WL 335147, at *8 (S.D.N.Y. May 26, 1999) (stating that FTDA “mirrors” New York statute). While the Second Circuit has cautioned district courts that “it is not clear that the [New York] statute is coextensive with the [TDRA],” Starbucks Corp., 477 F.3d at 766, both the federal and the state statutes require that plaintiffs show a likelihood of dilution, rather than actual dilution. Moreover, the state and federal statutes both require that plaintiffs show that defendants have used the mark in commerce. See FragranceNet.com, 493 F.Supp.2d at 548 (holding that “the ‘use’ requirement exists for ... proposed state law claims and is analyzed in the same manner as under the federal claims”). Thus, while the two statutes may not be identical, they are substantively similar and may be analyzed together, b. Analysis The Court concludes that the first and third elements of trademark dilution have been met. With respect to the first, it is abundantly clear that the TIFFANY Marks at issue in this litigation are famous; indeed, eBay has not disputed the point. See also A McCarthy § 24:87 (“Clearly, nationally famous marks like ... TIFFANY ... have the strong, distinctive quality of fame which is deserving of protection from dilution.”) (citing" }, { "docid": "12510124", "title": "", "text": "Borough Coffee, Inc., 477 F.3d 765, 766 (2d Cir.2007) (noting that Congress amended the FTDA in response to the Supreme Court’s construction requiring a showing of actual dilution in Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 433, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003)). On the other hand, where a plaintiff seeks damages on a dilution claim that was commenced prior to the enactment of the TDRA, the actual dilution requirement under the FTDA controls. See Malletier v. Dooney & Bourke, Inc., 500 F.Supp.2d 276, 283, n. 31 (S.D.N.Y.2007) (citing Starbucks Corp., 477 F.3d at 766) (citing Havana Club Holding, S.A. v. Galleon S.A., 203 F.3d 116, 129 (2d Cir.2000)). Here, Plaintiffs make clear that they seek summary judgment on all of their claims solely as to liability. For their part, Defendants seek judgment in their favor dismissing all of Plaintiffs’ claims. According to the complaint in this action, Plaintiffs seek injunctive as well as monetary relief. Therefore, Plaintiffs’ dilution claim for injunctive relief may be analyzed under the “likely to cause dilution” standard of the TDRA, but the actual dilution standard under the FTDA may be applied to Plaintiffs’ dilution claim insofar as they seek monetary damages. See Malletier, 500 F.Supp.2d at 283 (finding that plaintiff “will [] not reap monetary remedies absent a showing of actual dilution.”). According to the TDRA, for a mark to be considered famous, it must be “widely recognized by the general consuming public of the United States as a source of the goods or services of the mark’s owner.” § 1125(c)(2)(A). In order to decide whether a mark is famous, a court may consider all of the following factors: (i)The duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties. (ii) The amount, volume, and geographic extent of sales of goods or services offered under the mark. (iii) The extent of actual recognition of the mark. (iv) Whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the" }, { "docid": "19769566", "title": "", "text": "(2003), which had construed the FTDA to require a showing of actual dilution, as opposed to a likelihood of dilution. The FTDA, as amended effective October 6, 2006, entitles the owner of a famous, distinctive mark to an injunction against the user of a mark that is “likely to cause dilution” of the famous mark. 15 U.S.C. § 1125(c)(1) (hereinafter, the “amended statute”). The amended statute applies to this case to the extent that Starbucks has sought injunctive relief on the issue of dilution. See Havana Club Holding, S.A. v. Galleon S.A., 203 F.3d 116, 129 (2d Cir.2000) (applying intervening statute where plaintiff sought injunc-tive relief because “when an ‘intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive.’ ” (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 273, 114 S.Ct. 1483 (1994))); Sporty’s Farm L.L.C. v. Sportsman’s Market, Inc., 202 F.3d 489, 502 (2d Cir.2000)(finding no retroactivity problem where injunction would do no more than avoid continuing harm of cybersquatting); see also Am. Steel Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184, 201, 42 S.Ct. 72, 66 L.Ed. 189 (1921) (“[Rjelief by injunction operates in futuro and the right to it must be determined as of the time of the hearing.”). “Following a bench trial, .... we review de novo the district court’s conclusions of law and its resolution of mixed questions of law and fact.” Design Strategy, Inc. v. Davis, 469 F.3d 284, 300 (2d Cir.2006) (quoting Phansalkar v. Andersen Weinroth & Co., L.P., 344 F.3d 184, 199 (2d Cir.2003)). Here, the district court applied the pre-October 6, 2006 version of the FTDA, as construed by Moseley, and determined that Starbucks had failed to prove actual dilution. Although the district court also considered whether Starbucks had shown a likelihood of dilution under New York Gen. Bus. Law § 360-1, it is not clear that that statute is coextensive with the amended statute. In addition, the district court’s treatment of the New York statute does not permit a review of whether the analysis conforms with the amended statute. Accordingly," }, { "docid": "12510123", "title": "", "text": "dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury. 15 U.S.C. § 1125(c)(1) (2007). Thus in order to establish a claim for trademark dilution under the FTDA, a plaintiff must prove that (1) its mark is famous; (2) the defendant is making commercial use of the mark in commerce; (3) the defendant’s use began after the mark became famous; and (4) the defendant’s use of the mark dilutes the quality of the mark by , diminishing the capacity of the mark to identify and distinguish goods and services. Savin Corp. v. Savin Group, 391 F.3d 439, 451 (2d Cir.2004). See also § 1125(c)(1). Although the present action was filed before the TDRA became effective, the Second Circuit has held that where a plaintiff is seeking injunctive relief, the amended Act, including its requirement that a plaintiff prevail where the use is likely to cause dilution, is retroactive to pre-TDRA conduct. See Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 477 F.3d 765, 766 (2d Cir.2007) (noting that Congress amended the FTDA in response to the Supreme Court’s construction requiring a showing of actual dilution in Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 433, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003)). On the other hand, where a plaintiff seeks damages on a dilution claim that was commenced prior to the enactment of the TDRA, the actual dilution requirement under the FTDA controls. See Malletier v. Dooney & Bourke, Inc., 500 F.Supp.2d 276, 283, n. 31 (S.D.N.Y.2007) (citing Starbucks Corp., 477 F.3d at 766) (citing Havana Club Holding, S.A. v. Galleon S.A., 203 F.3d 116, 129 (2d Cir.2000)). Here, Plaintiffs make clear that they seek summary judgment on all of their claims solely as to liability. For their part, Defendants seek judgment in their favor dismissing all of Plaintiffs’ claims. According to the complaint in this action, Plaintiffs seek injunctive as well as monetary relief. Therefore, Plaintiffs’ dilution claim for injunctive relief may be analyzed under the “likely to cause dilution”" }, { "docid": "21205874", "title": "", "text": "an unambiguous date restriction that authorizes the application of the 'likelihood of dilution' standard as a basis for recovering damages to civil actions where the diluting mark or trade name was first introduced in commerce after October 6, 2006 .... Congress did not intend that the relaxed evidentiary standard would apply retroactively.”). Under the FTDA, in order to obtain the remedies set forth in section 1117(a) of title 15 of the United States Code, Tempur-Pedic must still show actual dilution, in addition to the wilfulness requirement retained by the TDRA, for claims of monetary relief. See id. at *2, 3. . 15 U.S.C. § 1125(c)(1) (emphasis added). . 537 U.S. 418, 433, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003) (holding that the text of the FTDA \"unambiguously requires a showing of actual dilution, rather than a likelihood of dilution.”). . 15 U.S.C. § 1125(c)(2)(A). The FTDA did not contain the phrase \"widely recognized by the general consuming public of the United States” in its definition of \"famous.” Its inclusion in the TDRA was intended to reject dilution claims based on \"niche” fame, i.e. \"fame limited to a particular channel of trade, segment of industry or service, or geographic region.\" Christopher D. Smithers Found., Inc. v. St. Luke’s-Roosevelt Hosp. Ctr., No. 00 Civ. 5502, 2003 WL 115234, at *5 (S.D.N.Y. Jan. 13, 2003). BNB has not contested the geographic reach of the TEMPUR-PEDIC® mark, and the issue of \"niche” fame is not implicated. Therefore, use of the TDRA's fame factors in analyzing Tempur-Pedic’s dilution claim for non-injunctive relief does not implicate the same retroactivity question raised by use of the changed standard of proof for dilution claims. The Second Circuit's requirement that \"the senior mark [must] be truly famous before a court will afford the owner of the mark the vast protections of the FTDA” remains unchanged by the TDRA’s reconfiguration of the fame factors to reject both \"niche” fame and the requirement of inherent distinctiveness. Savin Corp. v. Savin Group, 391 F.3d 439, 449 (2d Cir.2004). . 15 U.S.C. § 1125(c)(2)(A). . Id. . Hormel Foods Corp. v. Jim Henson" }, { "docid": "16924851", "title": "", "text": "of prestige in the goods sold on eBay with genuine Tiffany goods.” (PL’s Pr. Findings at 38-39.) The Court concludes that Tiffany has failed to prove that eBay is liable for trademark dilution and that even assuming arguendo that eBay could be liable for dilution, eBay’s use of the TIFFANY Marks is a protected, nominative fair use. a. Legal Standard The legal theory of dilution is grounded in the notion that a trademark can lose its “ability ... to clearly and unmistakably distinguish one source through unauthorized use.” Hormel Foods Corp. v. Jim Henson Prods., 73 F.3d 497, 506 (2d Cir.1996) (internal quotation omitted). Anti-dilution statutes protect against the “gradual whittling away of a firm’s distinctive trade-mark or name.” Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42 N.Y.2d 538, 544, 399 N.Y.S.2d 628, 369 N.E.2d 1162 (1977). Trademark dilution is a broader, and more subtle, principle than classic trademark infringement. As a preliminary matter, the Court must consider which federal anti-dilution statute applies to this case. When Tiffany filed its Amended Complaint on July 14, 2004, it did so under the Federal Trademark Dilution Act (“FTDA”), 15 U.S.C. § 1125(c) (2004). After the Amended Complaint had been filed, Congress enacted the Trademark Dilution Revision Act of 2006 (“TDRA”), Pub.L. No. 109-312, 120 Stat. 1730, 1731 (Oct. 6, 2006), which entitles the owner of a famous, distinctive mark to an injunction against the user of a mark that is “likely to cause dilution” of the famous mark. 15 U.S.C. § 1125(c)(1). Congress thus overruled the Supreme Court’s holding in Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 433, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003), that the FTDA requires a showing of “actual dilution,” and reasserted the less stringent “likelihood of dilution” standard to dilution cases. The Second Circuit has held that the TDRA applies retroactively to a claim filed before the TDRA went into effect to the extent that the plaintiff seeks injunctive relief. See Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 477 F.3d 765, 766 (2d Cir.2007). Because Tiffany seeks injunctive relief, the TDRA is applicable to" }, { "docid": "20036554", "title": "", "text": "Moreover, Defendants did appear in the instant matter, temporarily defended the action, brought in additional parties to the lawsuit, promised to secure counsel, but then ceased participation. Because Defendants have stopped contesting the allegations in the complaint, Plaintiffs claims are deemed to be admitted for purposes of liability. Accordingly, I find that Defendants are liable for violations of unfair competition both under Section 43(a) of the Lanham Act and under New York common law. 2. Trademark Dilution The Federal Trademark Dilution Act of 1995 (“FTDA”), as amended effective October 6, 2006 by the Trademark Dilution Revision Act (“TDRA”), “entitles the owner of a famous, distinctive mark to an injunction against the user of a mark that is ‘likely to cause dilution’ of the famous mark.” Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 477 F.3d 765, 766 (2d Cir.2007) (citing 15 U.S.C. § 1125(c)(1)). To establish a violation of the Act, a plaintiff must show that: (1) its mark is famous; (2) the defendant’s use of the mark is made in commerce; (3) the defendant used the mark after the mark was famous; and (4) the defendant’s use of the mark is likely to dilute the quality of the mark by blurring or tarnishment. See Gap, Inc. v. G.A.P. Adventures Inc., No. 07-CV-9614, 2011 WL 2946384, at *16 (S.D.N.Y. Jun. 24, 2011); Pan American World Airways, Inc. v. Flight 001, Inc., No. 06-CV-14442, 2007 WL 2040588, at *18 (S.D.N.Y. Jul. 13, 2007). Section 360 — Z of New York’s General Business Law provides a plaintiff with injunctive relief in cases where there is a “[l]ikelihood ... of dilution of the distinctive quality of a mark or trade name.” N.Y. Gen. Bus. Law § 360-i. To prove a section 360—l dilution claim, a plaintiff must show that it owns a distinctive mark and a likelihood of dilution. Pfizer, Inc. v. Y2K Shipping & Trading, Inc., No. 00-CV-5304, 2004 WL 896952, at *8 (E.D.N.Y. Mar. 26, 2004) (citing Hormel Foods Corp. v. Jim Henson Prods., 73 F.3d 497, 506 (2d Cir.1996)). Whether a mark or trade name is likely to cause dilution by" }, { "docid": "9912705", "title": "", "text": "event, regarding the issue of the standard of proof for a claim of a violation of the FTDA, neither Winner nor the sources cited therein and relied on by the District Court represent a correct view of the law as it now stands. A likelihood of dilution may have been enough to sustain a claim for dilution under the FTDA in 1999.. In 2003, however, the Supreme : Court decided Moseley, which changed the landscape of the law on this issue. As the Sixth Circuit noted in AutoZone, Inc. v. Tandy Corp.: To resolve a circuit split, the Supreme Court addressed the discrete issue of whether a dilution claim required proof of actual dilution or whether proof of a likelihood of dilution would suffice. Analyzing the- text of [the FTDA], .the Court held that the statute “unambiguously requires a showing of actual dilution, rather than a likelihood of dilution.” 373 F.3d 786, 804 (6th Cir.2004) (quoting Moseley, 537 U.S. at 433, 123 S.Ct. 1115) (citations omitted). This Circuit was one of those which, before Moseley, required' a showing of a mere likelihood of dilution to' sustain a claim of a violation of the federal statute. See, e.g., Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208, 224-25 (2d Cir.1999) (reading the federal anti-dilution “statute to permit adjudication granting or denying an injunction, whether at the instance of the senior user or the junior seeking declaratory relief, before the dilution has actually occurred”). Now, of course, the federal standard requires a showing of actual dilution, Moseley, 537 U.S. at 434, 123 S.Ct. 1115; see discussion supra part I, and, thus, is more stringent than the New York standard. Therefore, the District Court erred in dismissing Plaintiffs Section 360-1 dilution claim based solely on the court’s determination that Plaintiff had “failed to produce sufficient evidence to create a triable issue under the FTDA.” 2003 WL 22451731, at *16. Accordingly, we vacate that portion of the judgment of the District Court dismissing the state-law dilution claim and remand for consideration of that claim under the appropriate standard. III. The Trademark Infringement Claim “A" } ]

[ { "docid": "22674904", "title": "", "text": "it was clearly part of the legislative purpose to achieve uniformity in this respect. And in any case in which the department failed to remedy the particular substantiye or procedural defect or inadequacy, the sanction of judgment for the contractor would always be available to the court. HH HH In its argument here, the Government has urged that if judicial review is confined to the administrative record, it must be concluded that the Board’s determination is supported by substantial evidence and thus is’ entitled to finality under the Wunderlich Act. The respondent, on the other hand, contends that there were several irregularities in the Board’s procedures that preclude giving its determination conclusive effect. Neither of these matters is properly embraced within our grant of certiorari, and we are therefore not called upon to pass on them. We hold only that in its consideration of matters within the scope of the “disputes” clause in the present case, the Court of Claims is confined to review of the administrative record under the standards in the Wunderlich Act and may not receive new evidence. We therefore vacate the judgment below and remand the case for further proceedings in conformity with this opinion. ■It is so ordered. 41 U. S. C. § 321 provides: “No provision of any contract entered. into by the United States, relating to the finality or conclusiveness of any decision of the head of any department or agency or his duly authorized representative or board in a dispute involving a question arising under such contract, shall be pleaded in any suit now filed or to be filed as limiting judicial review of any such decision to cases where fraud by such official or his said representative ,or board is alleged: Provided, however, That any such decision shall be final and conclusive unless the’ same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” 41 U. S. C. § 322 provides: “No Government contract shall contain a provision making final on a question of law the decision" } ]

[ { "docid": "19650354", "title": "", "text": "Court nevertheless, in dictum, announced a presumption in favor of giving preclusive effect to administrative determinations \"where Congress has failed expressly or impliedly to evince any intention on the issue.\" Id.,at 110, 111 S.Ct. 2166. That dictum rested on two premises. First, that \"Congress is understood to legislate against a background of common-law adjudicatory principles.\" Id.,at 108, 111 S.Ct. 2166. And, second, that the Court had \"long favored application of the common-law doctrines of collateral estoppel (as to issues) and res judicata (as to claims) to those determinations of administrative bodies that have attained finality.\" Id.,at 107, 111 S.Ct. 2166. I do not quarrel with the first premise, but I have serious doubts about the second. The Court in Astoriaoffered only one decision predating the enactment of the ADEA to shore up its assertion that Congress had legislated against a background principle in favor of administrative preclusion-United States v. Utah Constr. & Mining Co.,384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966). See Astoria, supra,at 107, 111 S.Ct. 2166.And that decision cannot be read for the broad proposition asserted by the Court. Like Astoriaitself, Utah Constructiondiscussed administrative preclusion only in dictum. The case arose out of a contract dispute between the United States and a private contractor. 384 U.S., at 400, 86 S.Ct. 1545. The contract at issue contained a disputes clause providing for an administrative process by which \" 'disputes concerning questions of fact arising under th[e] contract' \" would be decided by the contracting officer, subject to written appeal to the head of the department. Id.,at 397-398, 86 S.Ct. 1545. The Wunderlich Act of 1954 likewise provided that such administrative factfinding would be \"final and conclusive\" in a later breach-of-contract action \" 'unless the same is fra[u]dulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.' \" Id.,at 399, 86 S.Ct. 1545. Because both \"the disputes clause [of the contract] and the Wunderlich Act categorically state[d] that administrative findings on factual issues relevant to questions arising under the contract [would] be final and conclusive" }, { "docid": "14430030", "title": "", "text": "J.D. He-din, itself a case of de novo review. “It can be presumed that Congress is knowledgeable about existing law pertinent to legislation it enacts.” VE Holding Corp. v. Johnson Gas Appliance Co., 917 P.2d 1574, 1581 (Fed.Cir.1990) (citing Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85, 108 S.Ct. 1704, 1711-12, 100 L.Ed.2d 158 (1988)), cert. denied, 499 U.S. 922, 111 S.Ct. 1315, 113 L.Ed.2d 248 (1991). The CDA did not purport to overrule Hedin; although the record makes clear its intent to overrule Bianchi, Grace, and Utah. “A party contending that legislative action changed settled law has the burden of showing that the legislature intended such a change.” Green v. Bock Laundry Machine Co., 490 U.S. 504, 521,109 S.Ct. 1981, 1991, 104 L.Ed.2d 557 (1989). The legislative history indicates that the purpose behind the CDA’s de novo review requirement was to return the law to the way it was prior to the Supreme Court’s decision in Wunderlich so that contractors could have the option of bringing claims directly to the Court of Claims without restriction to any agency board’s prior findings of fact. See S.Rep. No. 1118, 95th Cong., 2d Sess. 29 (1978), reprinted in 1978 U.S.C.C.A.N. 5235, 5263 (“Section 10(a) allows contractors, at their option, to bypass administrative disputes-resolving forums and seek review of adverse contracting officer decisions directly in the Court of Claims.”). Reading more into the purpose of the CDA’s de novo review provision (for example, implying that the J.D. Hedin holding was effectively overruled) would be contrary to and unsupported by the legislative history. The legislative history of the CDA does not mention J.D. Hedin. This is in direct contrast to United States v. Anthony Grace & Sons, 384 U.S. 424, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966), United States v. Utah Constr. & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966), and United States v. Carlo Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963), which were discussed and criticized in the CDA’s legislative history. See, e.g., H.R.Rep. No. 1556, supra at 73-81. In addition," }, { "docid": "19341482", "title": "", "text": "accepts that it is liable for breach of contract, appealing only with regard to the amount of damages. SUFI cross-appeals, seeking additional damages. We have jurisdiction under 28 U.S.C. § 1295(a)(3). DISCUSSION We review the Board decision in this case under the Wunderlich Act, previously codified at 41 U.S.C. §§ 321-322. Although the Act has been repealed, the repeal does not affect this case — involving judicial review of an administrative decision in a government-contract case that the parties agree is within the Tucker Act and outside the Contract Disputes Act— because SUFI initiated these proceedings at the Board before the repeal. Pub.L. No. 111-350, 124 Stat. 3677, 3855, 3859 (Jan. 4, 2011). Under the Wunderlich Act, the Board’s “decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence,” 41 U.S.C. § 321 (2006), and “[n]o Government contract shall contain a provision making final on a question of law the decision of any administrative official, representative, or board,” id. § 322. Although cases subject to the Act involve contract disputes, the judicial proceeding is one of judicial review of agency action. As relevant here, in applying the express statutory standard, we, like the Court of Federal Claims, decide legal issues de novo, review the Board’s factual findings for lack of substantial evidence, and ensure that the Board’s reasoning was not “capricious or arbitrary.” See Granite Const. Co. v. United States, 962 F.2d 998, 1001 (Fed.Cir.1992). The corollaries for issues that involve factual findings and record evidence are familiar. In United States v. Carlo Bianchi & Co., 373 U.S. 709, 716-17, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963), the Supreme Court held that a court reviewing a Wun-derlich Act case is limited to the administrative record and may not take new evidence. Shortly thereafter, the Court clarified that, “[wjhen the Board fails to reach and decide an issue because it disposes of the appeal on another ground,” the reviewing court, if it later rejects the relied-on ground, should generally" }, { "docid": "22089016", "title": "", "text": "that compliance with the specifications was impossible but he concluded that plaintiff had assumed the risk of impossibility. Therefore, it could not recover. After oral argument to the court, on November 17, 1967, we suspended these proceedings and returned the case to the ASBCA for more detailed findings of fact on the issue of whether performance was impossible and for clarification of the Board’s first decision wherein it had held that plaintiff did not prove that performance was a “legal impossibility.” On February 21, 1968, the ASBCA issued a supplementary opinion in which it concluded, as it had in its first opinion, that “the evidence adduced by appellant falls far short of establishing that it was impossible or commercially impracticable for a qualified manufacturer to meet the contract requirements.” The parties agree that the Board used the proper legal standard of impossibility. Additional briefs have been submitted and the case has again been heard on oral argument. It is now before us for review of the commissioner’s report and the Board’s decision. That report, we note, was made solely on the basis of the evidence 'and testimony presented to the ASBCA. I. Our initial task, in this as in all other cases which come before ns for Wunderlich Act review, is to determine whether substantial evidence exists to support the Board’s findings of fact. The standards for this evaluation 'are not easily articulated. We have, however, postulated guidelines\" for, and limitations on, the scope of such review by defining the content of the substantial evidence rule (often by stating what it is not, rather than what it is). Our starting point is the Wunderlich Act of 1954, 68 Stat. 81, 41 U.S.C. §§ 321, 322 (1964 Ed.). It states that administrative determinations of disputes of fact are conclusive and binding on the court unless the finding of fact is fraudulent, capricious or arbitrary, or so grossly erroneous as to imply bad faith, or it is not supported by substantial evidence. In United States v. Carlo Bianchi & Co., Inc., 373 U.S. 709 (1963), the Supreme Court considered the judicial review" }, { "docid": "19341484", "title": "", "text": "order a remand for the Board to address the issue it had not reached before judicial review. United States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 428-430, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966); see Wilner v. United States, 24 F.3d 1397, 1408 (Fed.Cir.1994) (Bennett, J., dissenting) (stating that Bianchi “required the Court of Claims to remand cases back to the agency board whenever additional findings of fact became necessary”). On the other hand, a remand to the Board is sometimes unnecessary — not only where the dispute turns only on legal issues, but even where a factual dispute exists if no further record development is appropriate and the fact is one “as to which the evidence is undisputed” or “is of such a nature that as a matter of law the Board could have made only one finding of fact.” Maxwell Dynamometer Co. v. United States, 181 Ct.Cl. 607, 386 F.2d 855, 870 (1967) (no remand necessary); see Collins Int’l Serv. Co. v. United States, 744 F.2d 812, 816 (Fed.Cir.1984) (“[T]he Claims Court may make findings of fact in this type of case [under the Wunderlich Act] where the evidence on the record is un-controverted or undisputed.”) We conclude that several matters require additional factual findings. None of those matters fall within exceptions to the general rule of remand to the Board on factual matters. Nor is this a case in which we conclude that “the Board will not promptly and fairly deal with the merits of the undecided issue.” Anthony Grace, 384 U.S. at 430, 86 S.Ct. 1539. Thus, any new factual findings that are required should be made by the Board. Burden of Proof Before discussing the substance of particular damages issues, we address whether the Board properly allocated the burden of proof regarding certain issues that arose in assessing lost-profits damages. As the non-breaching party seeking damages for breach in the form of lost profits, SUFI must prove, by a preponderance of the evidence, that (1) the loss [it claims] was the proximate result of the breach; (2) the loss of profits caused by" }, { "docid": "14430025", "title": "", "text": "competent court to have been “fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” 41 U.S.C. § 321 (1970). The Court of Claims interpreted the Wunderlich Act as restoring the situation to the way it was prior to the Wunderlich decision. See, e.g., Volentine & Littleton v. United States, 145 F.Supp. 952, 953, 136 Ct.Cl. 638 (1956). The Supreme Court agreed. S & E Contractors, Inc. v. United States, 406 U.S. 1, 13-14, 92 S.Ct. 1411, 1418-19, 31 L.Ed.2d 658 (1972) (“That Act was designed to overturn our decision in United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951), which had closed the courthouse doors to certain citizens aggrieved by administrative action amounting to something less than fraud.”), citing House and Senate Reports on the Act. Accordingly, the Court of Claims again began granting de novo hearings and deciding cases based upon its independent interpretation of the evidence produced at trial. However, in United States v. Carlo Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963), the Supreme Court again reversed the Court of Claims and held that even under the Wunderlich Act, absent fraud, the Court of Claims was bound by the findings of fact made by an agency board on issues subject to the contract’s disputes clause. Id. at 714, 83 S.Ct. at 1413. This holding required the Court of Claims to remand cases back to the agency board whenever additional findings of fact became necessary. The Court of Claims addressed the issue of de novo review again in two other cases: Anthony Grace & Sons v. United States, 345 F.2d 808, 170 Ct.Cl. 688 (1965), and Utah Constr. & Mining Co. v. United States, 339 F.2d 606, 168 Ct.Cl. 522 (1964). The court held that under the Wunderlich Act, the findings of the contracting officer or agency board were not binding if the dispute alleged claims, such as breach of contract, which did not arise under the contract’s disputes clause. Id. 339 F.2d at 609." }, { "docid": "21396550", "title": "", "text": "mechanism for adjudicating claims “arising under” the contract. Such claims must be submitted to the CO whose decision is final and conclusive unless appealed to the agency board of contract appeals (“board”). E.g., 10 C.F.R. § 961.11, Art. XVI H A. If the contractor is dissatisfied with the board’s decision, only then may it seek relief in the proper court. See Nager Elec. Co. v. United States, 177 Ct.Cl. 234, 251-52, 368 F.2d 847, 859 (1966). The scope of judicial review is limited to the administrative record developed by the board. United States v. Carlo Bianchi & Co., 373 U.S. 709, 714, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963). Under the Wunderlich Act, 41 U.S.C. §§ 321-22 (1994), the board’s factual findings will not be disturbed unless shown to be fraudulent, arbitrary or capricious, so grossly erroneous as necessarily to imply bad faith, or unsupported by substantial evidence. 41 U.S.C. § 321. The board’s legal determinations are not entitled to finality, however, and must be resolved independently by the court. 41 U.S.C. § 322; 10 C.F.R. § 961.11, Art. XVI ¶ A; Blake Constr. Co., Inc. v. United States, 220 Ct.Cl. 56, 59, 597 F.2d 1357, 1359 (1979). When a controversy “arises under” the contract, the contractor “must seek the relief provided for under the contract or be barred from any relief in the courts.” Crown Coat Front Co. v. United States, 386 U.S. 503, 512, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967); United States v. Utah Constr. & Mining Co., 384 U.S. 394, 402, 422 n. 22, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966). This is because the administrative mechanism in the disputes clause “is exclusive in nature. Solely through its operation may claims be made and adjudicated as to matters arising under the contract.” United States v. Joseph A. Holpuch Co., 328 U.S. 234, 239-40, 106 Ct.Cl. 852, 66 S.Ct. 1000, 90 L.Ed. 1192 (1946). An exception is made only if it clearly appears that the administrative procedures are “inadequate or unavailable” — when, for example, the CO or the board “so clearly reveals an unwillingness to act" }, { "docid": "11872317", "title": "", "text": "support the Board’s findings. However, when the claim is for breach of contract, and not a dispute arising under the contract, the court provides an independent judicial determination. United States v. Utah Construction Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966). Utah also sets forth that if a “breach” claim overlaps a “dispute arising under the contract,” any matter litigated before the Board in regard to dispute aris-. ing under the contract is to be determined on the “substantial evidence” Wunderlich Act standard, and is not to be relitigated de novo in court. B This is general learning and background. What plaintiff says is that the principle of limited judicial review is not applicable at all in the case of a serious defect in the establishment and procedures of the Board of Contract Appeals. Where there is such a defect in the organization and operation of a board of contract appeals, it does not have minimum objectivity, and the Wunderlich limitation may not govern the court hearing the contract action. The Supreme Court has stated “on several occasions that the parties will not be required to exhaust the administrative procedure if it is shown by clear evidence that such procedure is ‘inadequate or unavailable.’ It may be that the contracting officer or the Board of Contract Appeals so clearly reveals an unwillingness to act and to comply with the administrative procedure in the contract that the contractor or supplier is justified in concluding that those procedures have thereby become ‘unavailable.’ ” United States v. Grace & Sons, Inc., 384 U.S. 424, 429-30, 86 S.Ct. 1539, 1542-1543, 16 L.Ed.2d 662, 667 (1966) (citations omitted). See, e. g., Baltimore Contractors, Inc. v. United States, No. 272-70, Order of Trial Judge Spector, at 4 n. 5 (Ct.Cl., Trial Div., June 17, 1975), referring, inter alia, to a complaint that board members shared a small office with an attorney for the contracting officer. C Plaintiff sought to present an issue of that kind in regard to the Board of Contract Appeals of the District of Columbia. This contention was not considered" }, { "docid": "21287884", "title": "", "text": "a claim with the contracting officer for $3,000 for installing the sprinkler system, which claim was rejected by the contracting officer as untimely since plaintiff had not asserted a claim prior to accepting final payment. The plaintiff says that it accepted the final payment and signed the release under duress in that the contracting officer and another official of the Government threatened that otherwise the company’s record with the Government would be ruined and it would not be awarded any future government contracts. The plaintiff filed an appeal on July 31, 1973, with the Board seeking an equitable adjustment. The Board denied the appeal. In the present suit the plaintiff seeks review of the Board’s decision pursuant to the provisions of the Wunderlich Act, alleging that the Board’s decision was arbitrary, capricious, unsupported by substantial evidence and so grossly erroneous as to imply bad faith. The case is before us on cross-motions for summary judgment. Our review is limited to whether the Board’s findings are fraudulent, arbitrary, capricious, so erroneous as to imply bad faith, or not supported by substantial evidence. United States v. Utah Construction & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); United States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966); United States v. Carlo Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963); Marley v. United States, 191 Ct.Cl. 205, 423 F. 2d 324(1970). The plaintiff has the burden of making such a showing, otherwise the Board’s findings must be deemed to be final pursuant to the Wunderlich standards of review. In our opinion, the plaintiff has wholly failed to sustain this burden. The Board found that the invitation for bids and the ensuing contract were not so complicated as to require \"sophisticated construction.” The Board found further that: \"Aside from the boilerplate, the contract provisions— entail three specified sections with the last section, 'TECHNICAL PROVISIONS,’ subdividing the job into nine different areas of effort. A sprinkler system was highlighted as a major effort as far as the construction" }, { "docid": "4226334", "title": "", "text": "for a finding that plaintiff was delayed for any lesser period than that represented by the suspension of the central feature of this project (the dam) from April 20,1960 to June 12,1961. Plaintiff is therefore entitled to the additional claimed extension of 54 calendar days. Defendant no longer contests the determination that the delay amounted to 419 days, from April 20, 1960, to June 12, 1961. The precise amount Is not presently at Issue before the court. This is a so-called “civil works” contract of the Army. The “Disputes” article therein contained provides for appeal from an adverse decision “concerning a question of fact” to the Secretary or his duly authorized representative, and the latter is defined as the “Chief of Engineers, Department of the Army, or an individual or board designated by him.” The decision of the latter “shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. * * * “(b) This ‘Disputes’ clause does not preclude consideration of law questions in connection with decisions provided for in paragraph (a) above: Provided, That nothing in this contract shall be construed as making final the decision of any administrative official, representative, or board on a question of law.” The Wunderlich Act, 68 Stat. 81, 41 U.S.C. §§ 321-22 (1964 ed.), as interpreted by United States v. Carlo Bianchi & Co., 373 U.S. 709 (1963). See also United States v. Utah Constr. & Mining Co., 384 U.S. 394 (1966) and United States v. Anthony Grace & Sons, Inc., 384 U.S. 424 (1966). Authorizing the contracting officer to suspend all or part of the work for the convenience of the Government, and requiring an adjustment of contract price and time of performance under the circumstances described therein. Providing for an equitable adjustment of contract price and performance time should the contractor encounter subsurface or latent physical conditions at the site differing materially from those indicated in the contract. Authorizing the contracting officer to make" }, { "docid": "21261449", "title": "", "text": "Appellant’s motion for reconsideration. The Appellant appealed to this, court on August 23, 1979, claiming that the decision of the Board was arbitrary, capricious, and not supported by substantial evidence and was erroneous as a matter of law. The Appellant also asks for a reformation of the contract by a rescission of the ceiling contained in Modifications Nos. 5 and 6, which it alleges were inserted into the contract \"because the parties mistakenly relied on stale provisional rates in computing the ceiling.” The case is before us on cross-motions for summary judgment. We hold for the defendant. At the outset we point out that our authority to review a decision of a Board of Contract Appeals under the Wunder-lich Act (41 U.S.C. §321-322), such as that involved in this case, is limited to a determination of whether the Board’s findings are fraudulent, arbitrary, or capricious or so erroneous as to imply bad faith, or are not supported by substantial evidence, and whether the Board’s decision is erroneous as a matter of law. See United States v. Utah Construction & Mining Co., 384 U.S. 394 (1966); United States v. Anthony Grace & Sons, Inc., 384 U.S. 424 (1966); United States v. Carlo Bianchi & Co., 373 U.S. 709 (1963); Marley v. United States, 191 Ct.Cl. 205, 213, 423 F.2d 324, 328-329 (1970); H & H Mfg. Co. v. United States, 168 Ct.Cl. 873, 877 (1964). Therefore, we examine the decision of the Board subjectfto these limitations on our role as a reviewing court. The original agreement contained a Limitation of Cost clause which required the Appellant to notify HUD within 60 days when it had reason to believe that its costs would exceed 75% of the total estimated cost of the contract. Upon the giving of such notice, the contracting officer would decide whether to fund the overrun. The Appellant never gave any such notice, and now claims that it should be able to recover the cost overrun because of the holding of this court in General Electric Co. v. United States, supra, that a contractor could recover such costs even" }, { "docid": "18159048", "title": "", "text": "Fruin’s expert concerning the meaning of the contract term “exposed” to be persuasive, and concluded that Fruin was correct that the Code definition of “exposed” does not control when that term is used in non-safety related provisions of the contract. The Board determined that both parties’ interpretations of the contract were reasonable and that the contract was thus ambiguous. The Board ultimately denied Fruin’s claim, however, because Fruin did not submit any evidence showing that it relied upon its interpretation of the contract at the time the contract was first bid, Fruin thereafter appealed to this court challenging that requirement. II. DISCUSSION The standard of review in cases under the Contract Disputes Act is governed by 41 U.S.C. § 609(b) (1988), which states in pertinent part: [T]he decision of the agency board on any question of law shall not be final or conclusive, but the decision on any question of fact shall be final and conclusive and shall not be set aside unless the decision is fraudulent, or arbitrary, or capricious, or so grossly erroneous as to necessarily imply bad faith, or if such decision is not supported by substantial evidence. As the statute plainly states, and as we have said before, § 609(b) means that if the board’s findings of fact are supported by substantial evidence, we will not alter them even though the record may contain evidence supporting a contrary position. Er ickson Air Crane Co. of Washington v. United States, 731 F.2d 810, 814 (Fed.Cir.1984); United States v. General Elec. Corp., 727 F.2d 1567, 1572 (Fed.Cir.1984) (“Substantial evidence ‘means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ”). Accordingly, a contractor bears a heavy burden in demonstrating that a board’s factual findings should be overturned. Koppers Co. v. United States, 405 F.2d 554, 557, 186 Ct.Cl. 142 (1968). As to questions of law, however, a board’s decision is not final or conclusive, American Elec. Laboratories, Inc. v. United States, 774 F.2d 1110, 1112 (Fed. Cir.1985), and thus a board’s interpretation of a contract is not binding upon this court, B.D." }, { "docid": "22089017", "title": "", "text": "note, was made solely on the basis of the evidence 'and testimony presented to the ASBCA. I. Our initial task, in this as in all other cases which come before ns for Wunderlich Act review, is to determine whether substantial evidence exists to support the Board’s findings of fact. The standards for this evaluation 'are not easily articulated. We have, however, postulated guidelines\" for, and limitations on, the scope of such review by defining the content of the substantial evidence rule (often by stating what it is not, rather than what it is). Our starting point is the Wunderlich Act of 1954, 68 Stat. 81, 41 U.S.C. §§ 321, 322 (1964 Ed.). It states that administrative determinations of disputes of fact are conclusive and binding on the court unless the finding of fact is fraudulent, capricious or arbitrary, or so grossly erroneous as to imply bad faith, or it is not supported by substantial evidence. In United States v. Carlo Bianchi & Co., Inc., 373 U.S. 709 (1963), the Supreme Court considered the judicial review appropriate in cases governed by the Wunderlich Act and said: The term “substantial evidence” in particular has become a term of art to describe the basis on which an administrative record is to be judged by a reviewing court. This standard goes to the reasonableness of what the agency did on the basis of the evidence before it, * * *. [Emphasis added; 373 U.S. at 715] On remand (Carlo Bianchi & Co., Inc. v. United States, 167 Ct. Cl. 364 (1964), cert. denied, 382 U.S. 841 (1965)) we considered the record before the Board in the light of the Supreme Court’s statement and concluded: * * * However, even though we might have decided as an original matter with plaintiff on the balance, the decision of the Supreme Court requires us to go further and uphold the Board’s decision if there was substantial evidence to support the Board’s decision on the record as a whole. [167 Ct. Cl. at 368] In other decisions, we have discussed our review of a board’s findings of fact." }, { "docid": "14430027", "title": "", "text": "It was at about this time that the J.D. Hedin case was heard in the Court of Claims. In J.D. Hedin the contractor alleged that the government had changed the contract specifications and breached the contract by delaying the project’s completion. The trial commissioner conducted a de novo hearing and made findings and conclusions based on evidence produced at trial. On review the Court of Claims ruled, in banc, that the de novo hearing was proper because the government had waived any right it may have had to protest a de novo hearing per the Supreme Court’s holding in Bianchi by failing to make a timely objection. Meanwhile, the Supreme Court granted certiorari in both Anthony Grace and Utah. See United States v. Anthony Grace & Sons, 384 U.S. 424, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966); United States v. Utah Constr. & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966). In Anthony Grace, the Court held that in most cases the Court of Claims could not conduct de novo hearings under the Wunderlich Act and remanded an improperly dismissed dispute back to the agency board rather than to the Court of Claims for further findings. Similarly, in Utah the Court held that the Court of Claims may not conduct a de novo hearing except in cases involving breach claims where relief is not available under the contract. The decisions again caused concern in the contracting community. During hearings on the proposed CDA legislation, Congress considered whether the law should be returned to the way it was prior to Moorman and Wunderlich, so that the Court of Claims could again conduct de novo hearings in all eases. See H.R.Rep. No. 1556, 95th Cong., 2d Sess. 73-81 (1978) (statement of Acting Chief Judge Davis for the Court of Claims). As a result, Bianchi, Grace, and Utah were overruled by Congress when the de novo provision of section 609(a)(3) and the nonbinding provision of section 605 were incorporated into the CDA. The Court of Claims would thereafter conduct de novo hearings in all cases since “the [Supreme Court’s]" }, { "docid": "21287885", "title": "", "text": "or not supported by substantial evidence. United States v. Utah Construction & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); United States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966); United States v. Carlo Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963); Marley v. United States, 191 Ct.Cl. 205, 423 F. 2d 324(1970). The plaintiff has the burden of making such a showing, otherwise the Board’s findings must be deemed to be final pursuant to the Wunderlich standards of review. In our opinion, the plaintiff has wholly failed to sustain this burden. The Board found that the invitation for bids and the ensuing contract were not so complicated as to require \"sophisticated construction.” The Board found further that: \"Aside from the boilerplate, the contract provisions— entail three specified sections with the last section, 'TECHNICAL PROVISIONS,’ subdividing the job into nine different areas of effort. A sprinkler system was highlighted as a major effort as far as the construction of the building was concerned. This requirement was not too surprising a concern when consideration is given to the intended purpose of the structure sought. The completed building was to serve as a storage area for paint, a combustible material. In attempting to resolve the interpretation conflict posed by the litigants, the Board must scrutinize the contract in the manner consistent with the approach of a reasonable, intelligent bidder contemplating all the provisions of the contract and interpreting the instrument in a harmonious approach. With this as our guide, we determine that any reasonable, intelligent bidder would have concluded that the sprinkler system for the interior of the building was to be furnished under the contract in question. Tokai Interntional Kensetsu Company, Ltd., ASBCA No. 11447, 67-2 BCA ¶6660.” (Emphasis supplied). We agree. The interpretation of a contract is a question of law to be decided by the court, which is not bound by the Board’s interpretation. We held in Maxwell Dynamometer Co. v. United States, 181 Ct. Cl. 607, 386 F.2d 855 (1967): \"The" }, { "docid": "21535130", "title": "", "text": "Wunderlich Act standards, 41 U.S.C. §§ 321, 322, plaintiff has presented two basic arguments to this court: (1) that there was no latent defect such as to negate the finality of the Government’s January 5, 1965 acceptance of the tower and derricks, and (2) that the board was unwarranted in disregarding the stipulations of the parties for purposes of the July 15,1969 hearing on reconsideration. I. The Latent Defect Plaintiff contests the board’s conclusion that the presence of the undersized bolts constituted a latent defect such as to negate the finality of the Government’s January 5,1965 acceptance of the tower and derricks. By common definition, a latent defect is one which cannot be discovered by observation or inspection made with ordinary care. Buack’s Law DICTIONARY 1026 ■ (4th ed. 1968). This court must apply Wunderlich Act standards to the determinations of boards of contract appeals. Judicial reversals of board decisions are limited to those instances where board factual determinations are found to be fraudulent, capricious, arbitrary, or so grossly erroneous as to amount to fraud, or are not supported by substantial evidence. 41 U.S.C. § 321; United States v. Carlo Bianchi & Co., 373 U.S. 709 (1963); Koppers Co. v. United States, 186 Ct. Cl. 142, 147-51, 405 F. 2d 554, 556-59 (1968); Rimer Constr. Corp. v. United States, 159 Ct. Cl. 254 (1962). It is only with regard to a determination of a matter of law that this court is not bound by a prior board decision and is free to reach its own conclusion. 41 U.S.C. § 322; Utah Constr. & Mining Co. v. United States, 384 U.S. 394 (1966); Northwestern Indus. Piping, Inc. v. United States, 199 Ct. Cl. 540, 467 F. 2d 1308 (1972); Bailey Specialized Bldgs., Inc.v. United States, 186 Ct. Cl. 71, 404 F. 2d 355 (1968); Bruno N.Y. Indus. Corp. v. United States, 169 Ct. Cl. 999, 342 F. 2d 75 (1965) ; Kings Electronics Co. v. United States, 169 Ct. Cl. 433, 341 F. 2d 632 (1965). In the instant case the board determined that the existence of the undersized bolts constituted" }, { "docid": "21155535", "title": "", "text": "the decision of the Board shall be final and conclusive unless it is fraudulent, or capricious, or arbitrary, or so grossly erroneous as to imply bad faith, or is not supported by substantial evidence. In determining whether a particular fact finding is supported by substantial evidence, this Court has said: “A scintilla is not sufficient, nor is it enough that some pieces of testimony, in isolation and by themselves, could be said to underpin the finding.” Farnsworth & Chambers Co. v. United, States, 171 Ct. Cl. 30, 38, 346 F. 2d 577, 582 (1965). The existence of some evidence in the administrative record to support the decision is insufficient, and it is necessary to consider the record as a whole to deteimine whether the decision is supported by substantial evidence. Hoffman v. United States, 166 Ct. Cl. 39, 51, 340 F. 2d 645, 652 (1964) ; Williams v. United, States, 130 Ct. Cl. 435, 441, 127 F. Supp. 617, 619, cert. denied, 349 U.S. 938 (1955). Thus, in order to decide the question of substantial evidence, the evidence presented by both parties, including testimony elicited by cross-examination as well as direct examination, must be considered. Hoffman v. United States, supra. In a recent decision, this Court defined substantial evidence as that evidence which could convince an unprejudiced mind of the truth of the facts to which the evidence is directed. Koppers Co. v. United States, 186 Ct. Cl. 142, 149, 405 F. 2d 554, 558 (1968). In said case this Court reiterated its position that the substantial evidence standard is satisfied when there is such evidence as might convince an unprejudiced mind of the truth of the facts to which the evidence is directed and convince a reasonable man to arrive at the same conclusion reached by the Board of Appeals. It is plaintiffs’ contention that the Board’s decision includes findings that plaintiffs’ inspection of the construction site, prior to the Government’s invitation for bids, could and did reveal the difficulties to be encountered in the construction work; that plaintiffs’ inspection was inadequate and should have revealed the difficulties; and" }, { "docid": "12893251", "title": "", "text": "No. 97-164, 96 Stat. 25, are not relevant to resolution of the, issues raised in this case. . We consider entirely without merit appellant’s contention that § 1-8.502-2 does not apply because this case really involves a termination for default. The parties’ agreement, described above, settled the question. . Item 5 of the format for § 1-8.502-2 claims requires itemization. See also 41 C.F.R. § 1-8.307-l(c) (general requirement that a settlement proposal be in “reasonable detail”). . 41 U.S.C. §§ 321-322 (1976) (Wunderlich Act). The standard of review is: “ * * * any such decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” 41 U.S.C. § 321. The Court of Claims was limited to the record before the board. United States v. Cario Bianchi & Co., 373 U.S. 709, 714, 83 S.Ct. 1409, 1413, 10 L.Ed.2d 652 (1963). . United States v. Utah Constr. & Mining Co., 384 U.S. 394, 412, 86 S.Ct. 1545, 1555, 16 L.Ed.2d 642 (1966). . Tuttle/White Constructors, Inc. v. United States, 656 F.2d 644, 647-48 (Ct.Cl.1981). . See Tuttle/White Constructors, 656 F.2d at 647. The interest clause of Essex’s contract provided that interest would accrue “from the date the Contractor furnishes to the Contracting Officer his written appeal under the Disputes clause.” This would have been March 14, 1979. . Even though the contracting officer first received the claim prior to March 1, 1979, it has been settled that interest under the act may not be recovered for periods of time prior to its effective date. See Brookfield Constr. Co. v. United States, 661 F.2d 159, 162-66 (Ct.Cl.1981). . Fidelity Constr. Co. v. United States, 700 F.2d 1379, 1382-1385 (C.A.Fed.1983). . Id. . Paul E. Lehman, Inc. v. United States, 673 F.2d 352, 355 (Ct.Cl.1982). . Id. (citing with approval board decisions holding the same with respect to board review). See also Skelly & Loy v. United States, 685 F.2d 414, 418 & n. 12 (Ct.Cl.1982). . Skelly & Loy, 685" }, { "docid": "14430026", "title": "", "text": "Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963), the Supreme Court again reversed the Court of Claims and held that even under the Wunderlich Act, absent fraud, the Court of Claims was bound by the findings of fact made by an agency board on issues subject to the contract’s disputes clause. Id. at 714, 83 S.Ct. at 1413. This holding required the Court of Claims to remand cases back to the agency board whenever additional findings of fact became necessary. The Court of Claims addressed the issue of de novo review again in two other cases: Anthony Grace & Sons v. United States, 345 F.2d 808, 170 Ct.Cl. 688 (1965), and Utah Constr. & Mining Co. v. United States, 339 F.2d 606, 168 Ct.Cl. 522 (1964). The court held that under the Wunderlich Act, the findings of the contracting officer or agency board were not binding if the dispute alleged claims, such as breach of contract, which did not arise under the contract’s disputes clause. Id. 339 F.2d at 609. It was at about this time that the J.D. Hedin case was heard in the Court of Claims. In J.D. Hedin the contractor alleged that the government had changed the contract specifications and breached the contract by delaying the project’s completion. The trial commissioner conducted a de novo hearing and made findings and conclusions based on evidence produced at trial. On review the Court of Claims ruled, in banc, that the de novo hearing was proper because the government had waived any right it may have had to protest a de novo hearing per the Supreme Court’s holding in Bianchi by failing to make a timely objection. Meanwhile, the Supreme Court granted certiorari in both Anthony Grace and Utah. See United States v. Anthony Grace & Sons, 384 U.S. 424, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966); United States v. Utah Constr. & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966). In Anthony Grace, the Court held that in most cases the Court of Claims could not conduct de novo hearings" }, { "docid": "19341483", "title": "", "text": "administrative official, representative, or board,” id. § 322. Although cases subject to the Act involve contract disputes, the judicial proceeding is one of judicial review of agency action. As relevant here, in applying the express statutory standard, we, like the Court of Federal Claims, decide legal issues de novo, review the Board’s factual findings for lack of substantial evidence, and ensure that the Board’s reasoning was not “capricious or arbitrary.” See Granite Const. Co. v. United States, 962 F.2d 998, 1001 (Fed.Cir.1992). The corollaries for issues that involve factual findings and record evidence are familiar. In United States v. Carlo Bianchi & Co., 373 U.S. 709, 716-17, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963), the Supreme Court held that a court reviewing a Wun-derlich Act case is limited to the administrative record and may not take new evidence. Shortly thereafter, the Court clarified that, “[wjhen the Board fails to reach and decide an issue because it disposes of the appeal on another ground,” the reviewing court, if it later rejects the relied-on ground, should generally order a remand for the Board to address the issue it had not reached before judicial review. United States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 428-430, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966); see Wilner v. United States, 24 F.3d 1397, 1408 (Fed.Cir.1994) (Bennett, J., dissenting) (stating that Bianchi “required the Court of Claims to remand cases back to the agency board whenever additional findings of fact became necessary”). On the other hand, a remand to the Board is sometimes unnecessary — not only where the dispute turns only on legal issues, but even where a factual dispute exists if no further record development is appropriate and the fact is one “as to which the evidence is undisputed” or “is of such a nature that as a matter of law the Board could have made only one finding of fact.” Maxwell Dynamometer Co. v. United States, 181 Ct.Cl. 607, 386 F.2d 855, 870 (1967) (no remand necessary); see Collins Int’l Serv. Co. v. United States, 744 F.2d 812, 816 (Fed.Cir.1984) (“[T]he Claims" } ]

[ { "docid": "23009790", "title": "", "text": "§ 631. To recover in an age discrimination suit, “a plaintiff must prove by a preponderance of the evidence that age was the determinative factor in the employer’s decision” at issue. Bartek v. Urban Redevelopment Authority of Pittsburgh, 882 F.2d 739, 742 (3d Cir.1989). Though the plaintiff has the ultimate burden to prove that age was a determinative factor, he does not have to prove that age was the sole or exclusive reason, but rather that “age made a difference” in the employer’s decision. Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395 (3d Cir.), cert. denied, 469 U.S. 1087, 105 S.Ct. 592, 83 L.Ed.2d 702 (1984). Under the ADEA, a plaintiff must first prove a prima facie case of discrimination but this can be done with either direct or circumstantial evidence. Maxfield v. Sinclair International, 766 F.2d 788, 791 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). If the plaintiff establishes his prima facie case, an inference of unlawful discrimination arises. The burden then shifts to the defendant employer who can dispel the inference of discrimination by articulating a legitimate, nondiscriminatory reason for the plaintiff’s discharge. If the defendant meets this burden of production of evidence, the plaintiff must prove by a preponderance of the evidence that the articulated reasons are a pretext for discrimination. Bruno v. W.B. Saunders Co., 882 F.2d 760, 764 (3d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 880, 107 L.Ed.2d 962 (1990). The plaintiff can prove pretext directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. Fowle v. C & C Cola, 868 F.2d 59, 62 (3d Cir.1989). See also Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987) (indirect evidence can establish pretext). However, this indirect evidence must be enough to support a reasonable inference that the reasons given for the employment decision are pretextual. Merely reciting that age was the" } ]

[ { "docid": "22159142", "title": "", "text": "under the ADEA. See, e.g., Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897-98 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). To make out a prima facie case, a discharged employee in an age discrimination case must show: (1) that he belongs to the protected class, i.e., is older than forty; (2) was qualified by training and experience for the job from which he was discharged; and (3) was replaced by a person sufficiently younger to permit an inference of age discrimination. Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 202 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988). Where the discharged employee's job is eliminated and he is, therefore, not replaced, the employee need only show that he was laid off from a job for which he was qualified while other workers not in the protected class were retained. Healy v. New York Life Ins. Co., 860 F.2d 1209, 1214 n. 1 (3d Cir.1988), cert. denied, — U.S.-, 109 S.Ct. 2449, 104 L.Ed.2d 1004 (1989). Once the employee makes this showing, his employer must proffer a legitimate nondiscriminatory reason for discharging him. If the employer meets this burden, the burden of production shifts back to the employee to show that the defendants’ stated reasons were mere pretext and not worthy of credence. At all times, the employee retains the burden of persuading the trier of fact that age was a determinative factor in the defendant’s decision to take an adverse employment action against him. White, 862 F.2d at 59-60. “Age need not be the sole factor, but it must have made ‘a difference in the [employer’s] decision.’ ” Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 48 (3d Cir.1989) (quoting Chipollini v. Spencer Gifts Inc., 814 F.2d at 897). An employee may defeat summary judgment by producing “evidence of inconsistencies and implausibilities in the employer’s proffered reasons for discharge [which] reasonably could support an inference that the employer did not act for nondiscriminatory reasons_” Chipollini, 814 F.2d at 900. In this situation, the inquiry" }, { "docid": "22092936", "title": "", "text": "ADEA case of discriminatory discharge or demotion is too narrowly stated insofar as it appears to contemplate that the plaintiff must establish that she has actually been replaced by a significantly younger person. Because appellant Simpson was in fact replaced by a significantly younger person, the question is of no moment in the present litigation, and there is, therefore, no present need for this court to resolve it. But the question is one that is likely to surface in some future ADEA case. So flagging the question now may serve to stimulate some useful thinking by those interested in this field of law. In footnote 5 the court outlines the “three steps in the analysis of pretext discrimination cases” which must be pursued “[ujnder the McDonnell Douglas line of cases, as applied to the ADEA and the analogous provision of the PHRA.” The footnote explains that the first of the three steps consists of “establish[ing] a prima facie case of discrimination,” which a plaintiff accomplishes “by showing that she (1) is a member of the protected class, i.e. at least 40 years of age, 29 U.S.C. § 631(a), (2) is qualified for the position, (3) suffered an adverse employment decision, and (4) in the ease of a demotion or discharge, was replaced by a sufficiently younger person to create an inference of age discrimination.” In support of this four-phase formulation of a prima facie ADEA discharge or demotion case footnote 5 cites Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). The citation is an apposite one: in Chipollini, an ADEA discharge case, this court set forth essentially the same four-phase formulation. Chipollini, in turn, derived the four-phase formulation from Maxfield v. Sinclair Intern., 766 F.2d 788, 793 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). In Maxfield this court adapted to ADEA discharge eases the Supreme Court’s four-phase formulation in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), of a prima facie" }, { "docid": "12631240", "title": "", "text": "issue of fact. Sorba appealed. The district court order was entered on October 21, 1986. 648 P.Supp. 292. During the pendency of this appeal, we filed our opinion in Chipollini in which we explained that an ADEA plaintiff need not produce direct evidence of age discrimination in order to resist a motion for summary judgment based on the defendant employer’s proffer of a non-discriminatory reason for the plaintiff’s discharge. 814 F.2d at 894. Because this is a recurring area of confusion, we now reiterate much of what we said in Chipollini concerning the interrelationship of the shifting burden of production in discrimination cases with the burden of the employer as movant for summary judgment. II. Under the ADEA, a plaintiff must prove that age was a determinative factor in the defendant employer’s decision to dismiss the employee. See e.g., Duffy v. Wheeling Pittsburgh Steel Corp. 738 F.2d 1393, 1395 (3d Cir.), cert. denied, 469 U.S. 1087, 105 S.Ct. 592, 83 L.Ed.2d 702 (1984). A plaintiff may, of course, prove his case by direct evidence. However, in the absence of direct evidence a plaintiff may establish a prima facie case indirectly by proving by a preponderance of the evidence that the employee (1) belongs to a protected class; (2) was qualified for the position; (3) was dismissed despite being qualified; and (4) ultimately was replaced by a person sufficiently younger to permit an inference of age discrimination. See Masefield v. Sinclair International, 766 F.2d 788, 793 (3d Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). If the plaintiff succeeds in proving a prima facie case, the burden of production then shifts to the defendant to articulate some legitimate non-discriminatory reason for the discharge. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Should the defendant carry this burden, the plaintiff must prove by a preponderance of the evidence that the proffered reasons were not the employer’s true reasons. Id. In addition to establishing a prima facie case by indirect proof, an ADEA plaintiff can prevail by means of indirect proof that" }, { "docid": "22092927", "title": "", "text": "804, 805 (1992). . Under the McDonnell Douglas line of cases, as applied to the ADEA and the analogous provision of the PHRA, there are three steps in the analysis of pretext discrimination cases. See McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. at 1824-25. First, the plaintiff must establish a prima facie case of discrimination. Hicks, 509 U.S. at 506, 113 S.Ct. at 2746-47. This is done if she shows that she (1) is a member of the protected class, i.e. at least 40 years of age, 29 U.S.C. § 631(a), (2) is qualified for the position, (3) suffered an adverse employment decision, and (4) in the case of a demotion or discharge, was replaced by a sufficiently younger person to create an inference of age discrimination, Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.1987). Second, upon such a showing by the plaintiff, the burden shifts to the employer to produce evidence of a legitimate nondiscriminatory reason for the adverse decision. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2747. Third, the plaintiff must then demonstrate that the employer’s articulated reason was not the actual reason, but rather a pretext for discrimination. Id. at 507, 113 S.Ct. at 2747. Simpson incorrectly defines the second step as shifting the burden to the employer to show that its legitimate reason, alone, would have induced the employment decision. Such a burden of showing that the same decision would have been made absent discriminatory motives applies in Price Waterhouse mixed motive cases, not McDonnell Douglas pretext cases. See Price Waterhouse v. Hopkins, 490 U.S. 228, 276, 109 S.Ct. 1775, 1805, 104 L.Ed.2d 268 (1989) (O’Connor, J., concurring); Walden v. Georgia-Pacific Corp., 126 F.3d 506, 512 (3d Cir. 1997), cert. denied,U.S. -, 118 S.Ct. 1516, 140 L.Ed.2d 669 (1998). See generally Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1225 n. 6 (3d Cir.1994)(summarizing Price-Waterhouse eviden-tiary scheme), vacated, 514 U.S. 1034, 115 S.Ct. 1397, 131 L.Ed.2d 286 (1995), and modified in part, 65 F.3d 1072 (3d Cir.1995). This case is clearly not a mixed motive case because Simpson has pointed" }, { "docid": "5123955", "title": "", "text": "belongs to a protected class; (2) was qualified for the position; (3) was dismissed despite being qualified; (4) was replaced by someone younger. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.) (en banc), cert. dismissed, — U.S. -, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). It is undisputed that plaintiff was 55 years old when Schering terminated his employment. It is also undisputed that plaintiff was qualified for the position from which he was terminated. Plaintiff has clearly met his burden of establishing a prima facie case. At the time plaintiff was terminated, Schering eliminated the position so plaintiff was never actually replaced with a younger person. The Third Circuit has recognized that “[i]n a reduction in force situation, it is often impracticable to require a plaintiff whose job has been eliminated to show replacement.” Dreyer, 801 F.2d at 654 (citations omitted). Under McDonnell-Douglas, the burden now shifts to defendant to articulate their reason for the termination. In the instant case, defendant has submitted evidence that the reason for plaintiff’s termination was a company reorganization of manage ment personnel. Therefore, they have come forth with a legitimate, nondiscriminatory reason for the termination. The burden of production now shifts back to plaintiff to show that the proffered reason was pretextual and that defendant’s true reason for the termination was discriminatory. Defendant contends that they are entitled to summary judgment as a matter of law because plaintiff has not come forth with any proof that the reason given for plaintiffs termination was pretextual. “To defeat a summary judgment motion based only on defendant’s proffer of a nondiscriminatory animus, a plaintiff who has made a prima facie showing of discrimination, need only point to evidence establishing a reasonable inference that the employer’s proffered explanation is unworthy of credence.” Sorba v. Pennsylvania Drilling Co., Inc. 821 F.2d 200, 205 (3d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988). Specifically, in age discrimination cases, “[wjhere the employer has produced evidence of a non discriminatory motive for the employee’s dismissal, the appropriate summary judgment question is whether the" }, { "docid": "5123954", "title": "", "text": "To recover under the ADEA, a plaintiff must prove that age was a determinative factor in the employer’s decision to terminate plaintiff. Berndt v. Kaiser Aluminum & Chemical Sales, Inc., 789 F.2d 253, 256 (3d Cir.1986). The order and allocation of proof in an age discrimination suit is governed by the three part test set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for Title VII cases. First, plaintiff must make out a prima facie case. Then the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for plaintiff’s termination. If the employer meets this burden, the plaintiff must show that the proffered reason is a pretext for discrimination. See, e.g., Dreyer v. Arco Chemical Co., 801 F.2d 651, 653 (3d Cir.1986). “At all times, the plaintiff bears the ultimate burden of proving that age was ‘a determinative factor’ in the decision.” Id. (citations omitted). Plaintiff may establish a prima fa-cie case by proving by a preponderance of the evidence that he (1) belongs to a protected class; (2) was qualified for the position; (3) was dismissed despite being qualified; (4) was replaced by someone younger. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.) (en banc), cert. dismissed, — U.S. -, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). It is undisputed that plaintiff was 55 years old when Schering terminated his employment. It is also undisputed that plaintiff was qualified for the position from which he was terminated. Plaintiff has clearly met his burden of establishing a prima facie case. At the time plaintiff was terminated, Schering eliminated the position so plaintiff was never actually replaced with a younger person. The Third Circuit has recognized that “[i]n a reduction in force situation, it is often impracticable to require a plaintiff whose job has been eliminated to show replacement.” Dreyer, 801 F.2d at 654 (citations omitted). Under McDonnell-Douglas, the burden now shifts to defendant to articulate their reason for the termination. In the instant case, defendant has submitted evidence that the reason for plaintiff’s termination was" }, { "docid": "9716833", "title": "", "text": "36 L.Ed.2d 668 (1973). To do so, a plaintiff must establish (1) that she was a member of the class protected by the ADEA, (2) that she was qualified for the position from which she was discharged, (3) that she was discharged despite those qualifications, and (4) that the position was then filled by a person sufficiently younger to permit an inference of age discrimination. Healy v. New York Life Ins. Co., 860 F.2d 1209, 1214 (3d Cir.1988). If the plaintiff establishes a prima facie case, the burden of production then shifts to the defendant to articulate a “legitimate, non-discriminatory reason” for its action, which will dispel the presumption of discrimination inherent in a prima facie case. McDonnell-Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the defendant succeeds, the plaintiff (who at all times retains the burden of ultimate persuasion) must prove by a preponderance of the evidence that the reasons articulated by the defendant for its actions were not the true reasons. Bruno v. W.B. Saunders Co., 882 F.2d 760, 764 (3d Cir.1989); Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 202 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988). To withstand a motion for summary judgment, however, a plaintiff need not, of course, actually carry this burden. A trial court may enter summary judgment only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). To defeat a summary judgment motion based only on a defendant’s proffer of a nondiscriminatory animus, a plaintiff who has made a prima facie showing of discrimination, need only point to evidence establishing a reasonable inference that the employer’s proffered explanation is unworthy of credence. Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 205 (3d Cir.1987)," }, { "docid": "22092937", "title": "", "text": "protected class, i.e. at least 40 years of age, 29 U.S.C. § 631(a), (2) is qualified for the position, (3) suffered an adverse employment decision, and (4) in the ease of a demotion or discharge, was replaced by a sufficiently younger person to create an inference of age discrimination.” In support of this four-phase formulation of a prima facie ADEA discharge or demotion case footnote 5 cites Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). The citation is an apposite one: in Chipollini, an ADEA discharge case, this court set forth essentially the same four-phase formulation. Chipollini, in turn, derived the four-phase formulation from Maxfield v. Sinclair Intern., 766 F.2d 788, 793 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). In Maxfield this court adapted to ADEA discharge eases the Supreme Court’s four-phase formulation in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), of a prima facie Title VII case of racially discriminatory refusal to hire. Under McDonnell Douglas the plaintiff, as an initial matter, “must carry the burden of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” 411 U.S. at 802, 93 S.Ct. at 1824. The Maxfield discussion of the elements of a prima facie ADEA discharge case dealt with the question whether the fourth phase required a showing that the complainant had been replaced by a person younger than forty — i.e., a person not within the statutorily protected class. This court rejected such a construction of the ADEA: “we hold that an ADEA plaintiff may establish the fourth element of the McDonnell Douglas test for a prima facie" }, { "docid": "23089373", "title": "", "text": "alleges National Westminster Bank violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and New Jersey’s Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 et seq., by dismissing him because of his age. Age discrimination claims under the ADEA and LAD are governed by the same standards and allocation of burdens of proof. See Retter v. Georgia Gulf Corp., 755 F.Supp. 637, 638 (D.N.J.1991), aff'd, 975 F.2d 1551 (3d Cir.1992); see also Waldron v. SL Industries, Inc., 56 F.3d 491, 503-04 (3d Cir.1995). Lawrence’s age discrimination claims are grounded not on direct evidence but on pretext. We have adopted the McDonnell Douglas burden shifting analysis for age discrimination cases brought under a pretext theory. See Sempier, 45 F.3d at 728; Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). Under the McDonnell Douglas framework, a plaintiff must first present a prima facie ease by establishing that (1) he is over 40 years old, (2) he is qualified for the position in question, (3) he suffered from an adverse employment decision, and (4) his replacement was sufficiently younger to permit a reasonable inference of age discrimination. Sempier, 45 F.3d at 728; Chipollini, 814 F.2d at 897. Once a plaintiff has satisfied the prima facie standard, the burden shifts to defendant to articulate a “legitimate nondiscriminatory” reason for the adverse employment decision. Should the defendant successfully carry its burden, the plaintiff then “has the opportunity to demonstrate that the employer’s stated reasons were not its true reasons but were a pretext for discrimination.” Sem-pier, 45 F.3d at 728. At this stage, the plaintiff may defeat a summary judgment motion either: (1) by discrediting the proffered reasons for termination, directly or circumstantially, or (2) by adducing evidence that discrimination was more likely than not a motivating or determinative cause of the adverse action. Sempier, 45 F.3d at 731; see also Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994) (“We hold that, to ... [defeat a motion for summary judgment], the plaintiff generally must submit evidence" }, { "docid": "9716834", "title": "", "text": "Cir.1989); Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 202 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988). To withstand a motion for summary judgment, however, a plaintiff need not, of course, actually carry this burden. A trial court may enter summary judgment only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). To defeat a summary judgment motion based only on a defendant’s proffer of a nondiscriminatory animus, a plaintiff who has made a prima facie showing of discrimination, need only point to evidence establishing a reasonable inference that the employer’s proffered explanation is unworthy of credence. Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 205 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988). The plaintiff is not required to produce evidence which “necessarily leads to the conclusion that the employer did not act for discriminatory reasons.” Id. In this case, the district court held that Siegel had produced sufficient evidence to establish a prima facie case of age discrimination, because there was no dispute as to the fact that Siegel was in the protected age category and that she was terminated and replaced by one individual more than thirty years younger and another individual twenty-three years younger. The defendants disputed that Siegel was performing her job satisfactorily at the time of her discharge, pointing to the alleged instances of her disloyalty to Alpha articulated by Cowen. The district court held nevertheless that these instances did not negate Siegel’s showing that she had received satisfactory performance ratings during her twenty-one years of employment with Alpha, and Czerniawski’s testimony that Siegel was a “better than average employee.” (App. 14-15). The court went on to hold that the defendants" }, { "docid": "11034343", "title": "", "text": "101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The framework provides that the plaintiff may demonstrate a prima facie case by showing that (1) he is a member of a protected class, (2) he was qualified for the job from which he was discharged, and (3) others not in the protected class were retained. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; see also Hankins v. Temple University, 829 F.2d 437, 440 (3d Cir.1987). The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for discharging the plaintiff. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. The defendant’s burden is not one of persuasion, but only production of evidence logically supporting a reason for the dismissal. Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094; Bellissimo v. Westinghouse Elec. Corp., 764 F.2d 175, 179 (3d Cir.1985), cert. denied, 475 U.S. 1035, 106 S.Ct. 1244, 89 L.Ed.2d 353 (1986). Once the defendant has articulated a legitimate, non-discriminatory reason, the burden shifts back to the plaintiff to show by a preponderance of the evidence that the defendant’s stated reason is a pretext for discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. The task of the court at the summary judgment stage is to determine whether the evidence offered by the plaintiff establishes a reasonable inference that the PSP’s proffered reason for dismissing Blanding was pretextual such that there remains a genuine issue of material fact for trial. Weldon v. Kraft, Inc., 896 F.2d 793, 800 (3d Cir.1990). The plaintiff may establish pretext by either direct evidence of discrimination or by indirect or circumstantial evidence that the proffered reason is without credence. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 900 (3d Cir.) (en banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). The plaintiff may not, however, simply cast doubt on the defendant’s articulated reasons or merely restate his prima facie case. Id. Furthermore, even though an employee may disagree with the employer’s decisions, it is not for the court to second guess those decisions without evidence from which it" }, { "docid": "22178536", "title": "", "text": "see Erie Telecommunications, Inc. v. Erie, 853 F.2d 1084, 1093 (3d Cir.1988), “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.... 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 2511. III. ANALYSIS A. General Principles The framework of the evidentiary burdens in actions under the ADEA is now well settled. The plaintiff must first establish a prima facie case of discrimination. In the absence of direct evidence, a plaintiff may establish a prima facie case by demonstrating by a preponderance of the evidence that he or she (1) . belongs to a protected class, i.e. is at least 40 years of age; (2) was qualified for the position; (3) was dismissed despite being qualified; and (4)ultimately was replaced by a person sufficiently younger to permit an inference of age discrimination. Billet v. Cigna Corp. 940 F.2d 812, 816 n. 3 (3d Cir.1991); Healy v. New York Life Ins. Co., 860 F.2d 1209, 1214 (3d Cir.1988), cert. denied, 490 U.S. 1098, 109 S.Ct. 2449, 104 L.Ed.2d 1004 (1989); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.1987) (in banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). A prima facie case creates an inference of unlawful discrimination. The burden of production then shifts to the defendant-employer who can dispel the inference by articulating a legitimate business reason for discharging the employee. Billet, 940 F.2d at 816; Turner v. Schering-Plough Corp., 901 F.2d 335, 342 (3d Cir.1990); Siegel v. Alpha Wire Corp., 894 F.2d 50, 53 (3d Cir.), cert. denied, 496 U.S. 906, 110 S.Ct. 2588, 110 L.Ed.2d 269 (1990). If the defendant meets this burden, the plaintiff then must prove by a preponderance of the evidence that the articulated reasons are a pretext for discrimination. Billet, 940 F.2d at 816; Turner, 901 F.2d at 342; Bruno v. W.B. Saunders Co., 882 F.2d 760, 764 (3d Cir.1989), cert. denied, 493 U.S. 1062," }, { "docid": "23377260", "title": "", "text": "Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13. Similarly, we have often remarked that “ 'the nature of the required showing’ to establish a prima facie case of disparate treatment by indirect evidence ‘depends on the circumstances of the case.’ ” Torre v. Casio, Inc., 42 F.3d 825, 830 (3d Cir.1994) (citing Massarsky v. General Motors Corp., 706 F.2d 111, 118 n. 13 (3d Cir.), cert. denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983)). In the context of a claim of discriminatory termination of employment, for instance, we have held that the plaintiff must “prov[e] by a preponderance of the evidence that (1) he belongs to a protected class; (2) he was qualified for the position; (3) he was dismissed despite being qualified; and (4) he ultimately was replaced by a person [outside the protected class].” Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987); see also Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir.) (same), cert. denied, — U.S.-, 115 S.Ct. 2611, 132 L.Ed.2d 854 (1995); Torre, 42 F.3d at 830 (same). In a further effort to, fine-tune our jurisprudence on the subject, we have held that the fourth prong of the prima facie case should be “relaxed” when the employee’s layoff occurred in the context of a reduction in force. Torre, 42 F.3d at 831. In such a situation, “it obviously is unnecessary for the plaintiff to ... show that he was actually replaced by” someone outside the protected class. Massarsky, 706 F.2d at 118 n. 13; see also Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395 n. 3 (3d Cir.) (same), cert. denied, 469 U.S. 1087, 105 S.Ct. 592, 83 L.Ed.2d 702 (1984). Rather, “it is sufficient to show that he was discharged, while the [employer] retained someone [outside the protected class].” Healy v. New York Life Insurance Co., 860 F.2d 1209, 1214 n. 1 (3d Cir.1988), cert. denied, 490 U.S. 1098, 109 S.Ct. 2449, 104 L.Ed.2d 1004 (1989); see also DiBiase" }, { "docid": "22411410", "title": "", "text": "2548, 91 L.Ed.2d 265 (1986), which applies equally to McDonnell Douglas discrimination cases. See Healy v. New York Life Ins. Co., 860 F.2d 1209, 1219 n. 3 (3d Cir.1988), cert. denied, 490 U.S. 1098, 109 S.Ct. 2449, 104 L.Ed.2d 1004 (1989). Under Celotex, the district court must evaluate the nonmovant plaintiffs evidentiary showing to determine whether the showing raises a genuine issue of material fact. This court’s past discussions of the degree of proof required to survive summary judgment in McDonnell Douglas cases have recognized the need for this type of evidentiary evaluation. Fuentes v. Perskie provides our most extensive treatment of the subject. 32 F.3d 759 (3d Cir.1994). “[T]o avoid summary judgment, the plaintiffs evidence ... must allow a factfin-der reasonably to infer that each of the employer’s proffered nondiscriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext).” Id. at 764 (citations omitted) (first emphasis added); see Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir.) (adopting implicitly the “reasonable inference” standard), cert. denied, — U.S. -, 115 S.Ct. 2611, 132 L.Ed.2d 854 (1995); accord Siegel v. Alpha Wire Corp., 894 F.2d 50, 53 (3d Cir.), cert. denied, 496 U.S. 906, 110 S.Ct. 2588, 110 L.Ed.2d 269 (1990); Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 205 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988). In Fuentes, we observed that “this standard places a difficult burden on the plaintiff.” 32 F.3d at 765. It requires the plaintiff to “present sufficient evidence to meaningfully throw into question, i.e., to cast substantial doubt upon, the ... proffered reasons[.]” Id. (emphasis added). Elsewhere, we have described the standard in similar terms. See Seman v. Coplay Cement Co., 26 F.3d 428, 431 (3d Cir.1994) (“our standard requires consideration of whether or not there is substantial evidence in the record to support an employee’s contention that ‘but for’ his age he would not have been discharged” (citing Billet v. CIGNA Corp., 940 F.2d 812, 815 (3d Cir.1991))). In the present" }, { "docid": "13645661", "title": "", "text": "814 F.2d 893 (3d Cir.), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987), we held that a plaintiff does not need direct evidence of pretext in order to survive summary judgment. Instead, a plaintiff needs to be able to “point[] to evidence which calls into question the defendant’s intent.” Id. at 899. “[A] plaintiff who has made a prima facie showing of discrimination, need only point to evidence establishing a reasonable inference that the employer’s proffered explanation is unworthy of credence.” Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 205 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988). Hence, “[a] defendant which is less than honest in proffering its [legitimate, nondiscriminatory] reason ... risks ah unnecessary ... discrimination verdict.” Chipollini, 814 F.2d at 899. Chipollini and Sorba must not be read to mean that a plaintiff in a discrimination action always survives summary judgment when the plaintiff calls the defendant’s proffered explanation into question, however. “To create a factual dispute as to pretext, [the plaintiff] must not only introduce evidence from which a reasonable person could infer that he is qualified; he also must introduce evidence that casts doubt on [the defendant’s] contention that there was a legitimate business justification for [defendant’s action].” Healy v. New York Life Insurance Co., 860 F.2d 1209, 1220 (3d Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 2449, 104 L.Ed.2d 1004 (1989). Thus, the McDonnell Douglas presumptions entitle a member of a suspect class to the benefit of the doubt initially, but once the defendant has given a non-discriminatory reason for its actions, the plaintiff seek ing to defeat a summary judgment motion must produce or point to some evidence, in addition to the basic facts necessary to establish the prima facie case, indicating that the defendant’s reason is pretextual. In sum, the plaintiff cannot rely solely on a potential finding that the defendant’s explanation is implausible. The fact that a judge or jury might disbelieve the defendant’s asserted nondiscriminatory reason is not enough, by itself, to preclude summary judgment. Rather, the plaintiff must" }, { "docid": "22159141", "title": "", "text": "the ADEA, see Shaner v. Horizon Bancorp., 116 N.J. 433, 561 A.2d 1130 (1989); Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 429 A.2d 341 (1981), we will discuss the federal and state claims together. The evidentiary burdens under each statute are reflected in the burden shifting approach set forth by the Supreme Court in Title VII cases: First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate nondiscriminatory reason for the employee’s rejection. Third, should the defendant carry this burden, the plaintiff must then have the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). This court has adopted the Burdine approach for use under the ADEA. See, e.g., Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897-98 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). To make out a prima facie case, a discharged employee in an age discrimination case must show: (1) that he belongs to the protected class, i.e., is older than forty; (2) was qualified by training and experience for the job from which he was discharged; and (3) was replaced by a person sufficiently younger to permit an inference of age discrimination. Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 202 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988). Where the discharged employee's job is eliminated and he is, therefore, not replaced, the employee need only show that he was laid off from a job for which he was qualified while other workers not in the protected class were retained. Healy v. New York Life Ins. Co., 860 F.2d 1209, 1214 n. 1 (3d Cir.1988), cert. denied, — U.S.-, 109" }, { "docid": "22178537", "title": "", "text": "Cir.1991); Healy v. New York Life Ins. Co., 860 F.2d 1209, 1214 (3d Cir.1988), cert. denied, 490 U.S. 1098, 109 S.Ct. 2449, 104 L.Ed.2d 1004 (1989); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.1987) (in banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). A prima facie case creates an inference of unlawful discrimination. The burden of production then shifts to the defendant-employer who can dispel the inference by articulating a legitimate business reason for discharging the employee. Billet, 940 F.2d at 816; Turner v. Schering-Plough Corp., 901 F.2d 335, 342 (3d Cir.1990); Siegel v. Alpha Wire Corp., 894 F.2d 50, 53 (3d Cir.), cert. denied, 496 U.S. 906, 110 S.Ct. 2588, 110 L.Ed.2d 269 (1990). If the defendant meets this burden, the plaintiff then must prove by a preponderance of the evidence that the articulated reasons are a pretext for discrimination. Billet, 940 F.2d at 816; Turner, 901 F.2d at 342; Bruno v. W.B. Saunders Co., 882 F.2d 760, 764 (3d Cir.1989), cert. denied, 493 U.S. 1062, 110 S.Ct. 880, 107 L.Ed.2d 962 (1990). Pretext may be proved either “directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Billet, 940 F.2d at 816; see also, Turner, 901 F.2d at 342; Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 203 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988); Chipollini, 814 F.2d at 898. At all times, the plaintiff-employee has the burden of persuading the trier of fact that age was a determinative, though not necessarily the sole, factor in the defendant-employer’s decision to take an adverse employment action against the employee. Turner, 901 F.2d at 342. While “the prima facie case is rarely the focus of the ultimate disagreement,]” Healy, 860 F.2d at 1214 n. 1, at issue in each of these appeals is whether the appellants have satisfied their initial burden in establishing a prima facie case, as will be discussed below. B. Application of the Principles 1." }, { "docid": "23602340", "title": "", "text": "of age discrimination and, therefore, that the district court erred by denying its motion for judgment n.o.v. with respect to the jury’s verdicts in favor of Lockhart and Durham. In reviewing the court’s denial of WCC’s motion, “we must determine whether the evidence and justifiable inferences most favorable to the prevailing party afford any rational basis for the verdict.” Anastasio v. Schering Corp., 838 F.2d 701, 705 (3d Cir.1988). The ADEA protects individuals who are 40 and older from employment discrimination based upon their age. See 29 U.S.C. § 631(a) (Supp. IV 1986). Under the ADEA, the plaintiff has the ultimate burden of proving that age was the determinative factor in his or her discharge from employment. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). Age need not be the sole factor, but it must have “made a difference in the [employer’s] decision.” Id. The plaintiff can prevail on his or her claim by proffering direct evidence of specific intent to discriminate, but there is usually no “smoking gun” evidence of intentional discrimination. See Gavalik v. Continental Can Co., 812 F.2d 834, 852-53 (3d Cir.), cert. denied, — U.S. -, 108 S.Ct. 495, 98 L.Ed.2d 492 (1987). Consequently, the Supreme Court has developed a method of indirect proof involving presumptions and shifting burdens of production in order that the “plaintiff [can have] his [or her] day in court despite the unavailability of direct evidence.” Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir.1979). This three-part formula was first articulated in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), and enunciated again in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981). First, the plaintiff must present a prima facie case of age discrimination. This is accomplished “by proving by a preponderance of the evidence that (1) he belongs to a protected class; (2) he was qualified for the position; (3) he was dismissed despite" }, { "docid": "22178535", "title": "", "text": "U.S.C. §§ 1331 and 1343(a)(4), and we have jurisdiction pursuant to 28 U.S.C. § 1291. II. STANDARD OF REVIEW The scope of review of an order granting summary judgment is plenary. Philadelphia & Reading Corp. v. United States, 944 F.2d 1063, 1070 (3d Cir.1991); Wallach v. Brezenoff, 930 F.2d 1070, 1071 (3d Cir.1991). “We apply the test provided in Federal Rule of Civil Procedure 56(c): (1) is there no genuine issue of material fact and (2) is one party entitled to judgment as a matter of law?” Country Floors, Inc. v. Gepner, 930 F.2d 1056, 1060 (3d Cir.1991) (quoting Int’l Union, UMWA v. Racho Trucking Co., 897 F.2d 1248, 1252 (3d Cir.1990)). A disputed fact is “material” if it would affect the outcome of the suit as determined by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Thus, while the facts must be viewed in the light most favorable to the nonmoving party and all inferences must be drawn in that party’s favor, see Erie Telecommunications, Inc. v. Erie, 853 F.2d 1084, 1093 (3d Cir.1988), “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.... 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 2511. III. ANALYSIS A. General Principles The framework of the evidentiary burdens in actions under the ADEA is now well settled. The plaintiff must first establish a prima facie case of discrimination. In the absence of direct evidence, a plaintiff may establish a prima facie case by demonstrating by a preponderance of the evidence that he or she (1) . belongs to a protected class, i.e. is at least 40 years of age; (2) was qualified for the position; (3) was dismissed despite being qualified; and (4)ultimately was replaced by a person sufficiently younger to permit an inference of age discrimination. Billet v. Cigna Corp. 940 F.2d 812, 816 n. 3 (3d" }, { "docid": "14338523", "title": "", "text": "(1) a member of a protected class (here, persons aged forty to seventy), (2) qualified for the position, (3) dismissed from, or not selected for, a position, and (4) passed over in favor of a candidate sufficiently younger to permit an inference of age discrimination. Maxfield, 766 F.2d at 792-93; see also Ezold, 983 F.2d at 522. “Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.” Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; see also Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir.1992). Plaintiff indicates that (1) he was 63 years old at the time his employment was terminated, (2) he was qualified for the positions of Electrical or Electronics Marketing Manager, (3) he did not receive either position, and was in fact terminated, and (4) the position of Industrial Marketing Manager was ultimately given to Ed Brown, who at the time was 32 years old. Plaintiff has therefore presented evidence sufficient to establish a prima facie case. 2. Articulation of Legitimate, Noiu-Discriminatory Reasons for the Employee’s Termination If a prima facie case is established, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employee’s rejection. If the defendant fails to produce evidence which, if taken as true, would permit the conclusion that there was a non-diseriminato-ry reason for the defendant’s action, judgment must be entered on behalf of the plaintiff. St. Mary’s, — U.S. at -, 113 S.Ct. at 2747; see also Ezold, 983 F.2d at 522; Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898 (3d Cir.), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). However, the defendant’s burden is not one of persuasion, but only of production of evidence logically supporting a reason for the dismissal. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; Bellissimo v. Westinghouse Elec. Corp., 764 F.2d 175, 179 (3d Cir.1985), cert. denied, 475 U.S. 1035, 106 S.Ct. 1244, 89 L.Ed.2d 353 (1986). Defendants have presented the following explanation for the adverse employment decisions made as" } ]

[ { "docid": "22833466", "title": "", "text": "as quickly as a blink of the public’s eye, and interruption however short the time in a newspaper’s coverage of the news causes it to lose readership. So a newspaper is naturally at risk when its source of foreign photographs is only guaranteed for three months. We cannot imagine that UPI’s reputation and good will in the news industry would not be injured by such an announcement. Further, an injury of this sort is nearly impossible to value. See Dominion Bankshares Corp. v. Devon Holding Co., 690 F.Supp. 338, 348 (E.D.Pa.1988); Supermarket Services, 382 F.Supp. at 1256-57. The denial of the preliminary injunction was also premised on the notion that UPI could show no more than an immediate loss of some but not most of its customers, and that a loss of customers is compensable by monetary damages. We leave aside the catch-22 implication of requiring a movant seeking a preliminary injunction to produce evidence to support its claim of irreparable harm that its present customers will cease subscribing if foreign pictures are no longer furnished to it. Alerting UPI’s subscribers to the tentative nature of the foreign newsphoto service could well lead to cancellation of their subscriptions thereby creating the irreparable harm the movant is attempting to demonstrate. Again, in cases where a preliminary injunction has issued to prevent a product source from suspending delivery to a distributor, the irreparable harm has often consisted of the loss of customers and the competitive disadvantage that resulted from a distributor’s inability to supply its customers with the terminated product. See, e.g., Jacobson, 548 F.2d at 444-45; Supermarket Services, 882 F.Supp. at 1256; Interphoto, 295 F.Supp. at 723-24. Cf. John B. Hull, Inc. v. Waterbury Petroleum Products, Inc., 588 F.2d 24, 29 (2d Cir.1978) (irreparable injury shown when “plaintiff is deprived totally of the opportunity to sell an entire line of merchandise and may incur injury to its goodwill and reputation ‘as a dependable distributor’ ” (quoting Supermarket Services, 382 F.Supp. at 1256)), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979). We are persuaded that similar irreparable injury" } ]

[ { "docid": "15914374", "title": "", "text": "*9-10, 2012 U.S. Dist. LEXIS 128409, at *38-39 (S.D.N.Y. Sept. 10, 2012); Pitbull Prods., Inc. v. Universal Netmedia, Inc., No. 07 Civ. 1784(RMB)(GWG), 2007 WL 3287368, at *5, 2007 U.S. Dist LEXIS 82201, at *13-14 (S.D.N.Y. Nov. 7, 2007). A court may issue such a permanent injunction based on its consideration of (1) the likelihood that plaintiff will suffer irreparable harm if an injunction is not granted; (2) whether remedies at law such as monetary damages are inadequate to compensate plaintiff for that harm; (3) the balance of hardships; and (4) whether the public interest would not be disserved by a permanent injunction. Salinger v. Colting, 607 F.3d 68, 77-78 (2d Cir.2010) (explaining that this standard, which was articulated by the Supreme Court in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006), applies in copyright actions); see also U.S. Polo Ass’n, Inc. v. PRL USA Holdings, Inc., 800 F.Supp.2d 515, 539 & n. 16 (S.D.N.Y.2011) (eBay/Salinger standard also applies in trademark infringement actions). All of these factors militate toward issuing Rovio’s requested permanent injunction. As established above, Rovio has alleged and presented evidence that the Toy Amazon defendants have infringed its trademarks and copyrights, causing irreparable injury to Rovio. Rovio also alleges that it put the Toy Amazon defendants on notice of their infringing activities on several occasions, and the Toy Amazon defendants nevertheless continued such activities. {See Compl. ¶¶ 40-43 & exs. D, E.) Rovio also alleges that the Toy Amazon defendants imported infringing products into the United States at least as recently as March 2014. (Compl. ¶¶ 40, 43 & exs. D, E; Sands Decl. ¶ 30 & ex. 10.) Toy Amazon’s past behavior suggests that Toy Amazon might continue to engage in infringing activities and counterfeiting unless enjoined by the Court, demonstrating the danger that monetary damages will fail to fully provide Rovio with relief. As to the balance of hardships, “[i]t is axiomatic that an infringer ... cannot complain about the loss of ability to offer its infringing product.” WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 287 (2d" }, { "docid": "20023422", "title": "", "text": "the Second Circuit, a party seeking a preliminary injunction has historically been required to demonstrate that it will suffer irreparable harm absent injunctive relief, and either (1) that it is likely to succeed on the merits of the action; or (2) that there are sufficiently serious questions going to the merits to make them a fair ground for litigation, provided that the balance of hardships tips decidedly in favor of the moving party. Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir.2010) (internal quotations and citation omitted); accord Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 152-53 (2d Cir.2007) (applying the standard to Lanham Act claims). However, the Circuit has recently revisited the standard for injunctive relief in the context of an action for copyright infringement. It concluded that its “longstanding standard ... is inconsistent with the ‘test historically employed by courts of equity’ and has, therefore, been abrogated by eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006).” See Salinger v. Colting, 607 F.3d 68, 74-75 (2d Cir.2010). In Salinger, the court held that a preliminary injunction should issue upon a showing of a plaintiffs likelihood of success on the merits pnly where the plaintiff has also shown that: (1) “he is likely to suffer irreparable injury in the absence of an injunction”; (2) “remedies at law, such as monetary damages, are inadequate to compensate for that injury”; (3) the balance of hardships tips in his favor; and (4) “the ‘public interest would not be disserved’ by the issuance of a preliminary injunction.” Id. at 80 (“citing eBay, 547 U.S. at 391, 126 S.Ct. 1837).” Although the Salinger court made clear that its holding was “limited to preliminary injunctions in the context of copyright cases,” the court also explained that it saw “no reason that eBay would not apply with equal force to an injunction in any type of case.” Salinger, 607 F.3d at 78 n. 7 (emphasis in original). The Court understands Salinger as indicating that the standard for injunctive relief historically" }, { "docid": "16174714", "title": "", "text": "premised on the Court’s findings on Plaintiffs’ Lanham Act claim, which remains subject to determination at trial, the Court finds that Defendant’s Motion for Summary Judgment on Plaintiffs’ unfair competition claim must be denied. Celotex, 477 U.S. at 325; Schoellkopf, 778 S.W.2d at 904-05. Accordingly, Uber’s motion for summary judgment on Plaintiffs’ unfair competition claim is DENIED. (Instrument No. 129). D. Permanent Injunction Defendant also moves for summary judgment on Plaintiffs’ request for a permanent injunction. (Instrument No. 129 at 25). Plaintiffs seek to enjoin Defendant from further misrepresenting the safety of Uber. (Instrument No. 107 at 40). Defendant opposes on the basis that Plaintiffs have not demonstrated that they will suffer irreparable harm if the injunction is not granted. (Instrument No. 129 at 25). 15 U.S.C. § 1116 authorizes district courts to grant permanent injunctions, “according to the principles of equity and upon such terms as the court may deem reasonable.” 15 U.S.C. § 1116(a) (West 2015). To obtain an injunction, a plaintiff must establish: (1) That it has suffered an irreparable injury; (2) That remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) That, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) That the public interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). Whether to grant an injunction is within the sound discretion of the trial court. Frostie Co. v. Dr. Pepper Co., 361 F.2d 124, 126-27 (5th Cir.1966). In the Court’s March 10, 2015 Order on Defendant’s previous motion to dismiss, the Court found that that Plaintiffs had adequately pleaded the requirements for permanent injunctive relief at the motion to dismiss stage. (Instrument No. 95 at 37). See eBay, 547 U.S. at 391, 126 S.Ct. 1837; Abraham v. Alpha Chi Omega, 708 F.3d 614, 626-27 (5th Cir.2013); Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir.2009). This Court reserved the question of whether irreparable injury could be proved in Plaintiffs’ surviving" }, { "docid": "9595401", "title": "", "text": "injunction. Cherry River Music Co., 38 F.Supp.2d at 323. The court also ordered the recall even though it found that “[the defendant’s] distribution arrangements are complex,” and involved “800 to 1,000 [retailer] customers in three channels.” Id. at 324; see also Gund, Inc. v. Golden Bear Co., Ltd., 1992 WL 392602, at *5 (S.D.N.Y. Dec. 10,1992) (ordering recall after finding that “[although the [infringing products] have been widely distributed, [the defendant] did not assert that they were particularly expensive to ship”). Here, a recall by Kidz-Med would involve five retailers, rather than the 800 to 1000 at issue in Cherry River Music Co., and there is no suggestion that defendant’s distribution arrangements are complex. While Kidz-Med has estimated the costs of a recall at $95,000 — not an insignificant amount for a company allegedly running out of cash — “the hardship of which it complains was significantly of its own making, and could have been avoided or limited if it had stopped shipping when [it] received plaintiff[’s] first cease and desist letter.” Cherry River Music Co., 38 F.Supp.2d at 324. Tecnimed will also derive benefit from a recall. At present, the Thermofocus directly competes against Kidz-Med’s product both in “brick and mortar” stores and over the internet. Given Kidz-Med’s misleading promotional efforts and the high likelihood of consumer confusion, the harm resulting to Tecnimed from Kidz-Med’s continued sale of its product is likely to be substantial. Because consumers are likely to buy only one non-contact thermometer, a Kidz-Med sale obtained at Tecnimed’s expense will not be recouped in the future. Accordingly, the Court finds that the balance of hardships favors a recall of the Kidz-Med product. Y. PUBLIC INTEREST As the final step in the Salinger analysis, “the court must ensure that the ‘public interest would not be disserved’ by the issuance of a preliminary injunction.” Salinger, 607 F.3d at 80 (quoting eBay v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)). The public interest would not be disserved by the issuance of a preliminary injunction here. Assuming arguendo that the Kidz-Med product is superior" }, { "docid": "9595402", "title": "", "text": "Co., 38 F.Supp.2d at 324. Tecnimed will also derive benefit from a recall. At present, the Thermofocus directly competes against Kidz-Med’s product both in “brick and mortar” stores and over the internet. Given Kidz-Med’s misleading promotional efforts and the high likelihood of consumer confusion, the harm resulting to Tecnimed from Kidz-Med’s continued sale of its product is likely to be substantial. Because consumers are likely to buy only one non-contact thermometer, a Kidz-Med sale obtained at Tecnimed’s expense will not be recouped in the future. Accordingly, the Court finds that the balance of hardships favors a recall of the Kidz-Med product. Y. PUBLIC INTEREST As the final step in the Salinger analysis, “the court must ensure that the ‘public interest would not be disserved’ by the issuance of a preliminary injunction.” Salinger, 607 F.3d at 80 (quoting eBay v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)). The public interest would not be disserved by the issuance of a preliminary injunction here. Assuming arguendo that the Kidz-Med product is superior to the Thermofocus, an injunction would not deprive the public of Kidz-Med’s product. It would simply require Kidz-Med to package its product in a way that is not likely to cause consumer confusion between its product and the Thermofocus. This requirement serves the public interest by removing confusing trade dress from the marketplace. See New York City Triathlon, LLC, 704 F.Supp.2d at 345 (“[T]he public has an interest in not being deceived — in being assured that the mark it associates with a product is not attached to goods of unknown origin and quality.”) ****** Tecnimed has demonstrated that (1) it is likely to succeed on the merits of its trademark infringement claim; (2) it is likely to suffer irreparable injury in the absence of an injunction; (3) the balance of hardships favors the granting of an injunction; and (4) the public interest will not be disserved by the issuance of an injunction. Accordingly, the Salinger test is satisfied and a preliminary injunction is appropriate. VI. POSTING OF BOND Rule 65(c) provides that “[t]he court" }, { "docid": "16174715", "title": "", "text": "That remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) That, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) That the public interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). Whether to grant an injunction is within the sound discretion of the trial court. Frostie Co. v. Dr. Pepper Co., 361 F.2d 124, 126-27 (5th Cir.1966). In the Court’s March 10, 2015 Order on Defendant’s previous motion to dismiss, the Court found that that Plaintiffs had adequately pleaded the requirements for permanent injunctive relief at the motion to dismiss stage. (Instrument No. 95 at 37). See eBay, 547 U.S. at 391, 126 S.Ct. 1837; Abraham v. Alpha Chi Omega, 708 F.3d 614, 626-27 (5th Cir.2013); Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir.2009). This Court reserved the question of whether irreparable injury could be proved in Plaintiffs’ surviving Lanham Act claims based on alleged comparative misrepresentations by Defendant. (Instrument No. 95 at 37). Plaintiffs’ amended complaint reiterates their claim for injunctive relief for a full and permanent injunction against Defendant enjoining them forever from the false advertising practices that they have alleged. (Instrument No. 107 at 40). Defendant argues that there is no indication that forcing Uber to modify statements on its website regarding safety or background checks would prevent any alleged harm Plaintiffs might suffer. (Instrument No. 129 at 25). Despite the Court’s prior order reserving the question of whether irreparable harm could be presumed based on Defendant’s alleged comparative misrepresentations, Defendant argues that “the Court has already determined that Plaintiffs failed to establish that they would suffer irreparable harm absent an injunction.” (Instruments No. 95; No. 129 at 25). This argument completely mischaracterizes the Court’s prior order. The Court previously found that Plaintiffs had not pleaded irreparable injury, but also stated that the Fifth Circuit allows for a presumption of irreparable injury when a plaintiff shows a “likelihood of confusion” for" }, { "docid": "1621308", "title": "", "text": "Mot. 25. C & D adds that any irreparable harm claimed is the result of RUSH’S own actions. Id. Defendant argues that for a showing of irreparable harm, a loss requires more than a mere showing of lost profits; rather, the alleged loss must be sufficiently severe that it threatens the survival of the movant’s business. Def.’s Mot. 20-21 (citing Sierra Military Health Servs., Inc. v. United States, 58 Fed.Cl. 573, 582 (2003); Minor Metals, Inc. v. United States, 38 Fed.Cl. 379, 381-82 (1997)). Because RUSH has made no allegation that the loss of this contract would imperil its business, argues defendant, RUSH’S allegation of harm fails to rise to the level of irreparable harm. Id. at 21. Defendant takes the position that were this court to accept lost profits as a sufficient showing of irreparable harm, it would create a presumption in favor of injunctive relief which is contrary to Supreme Court precedent. Id. (citing eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391-93, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006); Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 544-45, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)). In eBay, the Supreme Court considered the then-practice of the Federal Circuit of promoting the “ ‘general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances,’ ” eBay, 547 U.S. at 391, 126 S.Ct. 1837 (quoting MercExchange, LLC v. eBay, Inc., 401 F.3d 1323, 1339 (Fed.Cir.2005)), and determined that the practice was inconsistent with “traditional principles of equity,” id. at 394, 126 S.Ct. 1837. The Court vacated the Federal Circuit’s decision, based upon its presumption in favor of permanent injunction, and remanded the case to the district court to consider whether a permanent injunction was warranted under the same four-factor test now in use in this court. Id. at 394, 126 S.Ct. 1837; see id. at 391, 126 S.Ct. 1837 (citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982); Amoco Prod., 480 U.S. at 542, 107 S.Ct. 1396). In Amoco Production, the district court denied the complainant Village a" }, { "docid": "26304", "title": "", "text": "to his investigation of the relevant facts and law. After obtaining multiple extensions, Defendant moved to dismiss the complaint based on lack of personal jurisdiction over him in New York. After a protracted period of jurisdictional discov ery, Defendant withdrew the motion on November 5, 2010. In the meantime, on September 1, 2010, the case, which had been proceeding before Hon. Stephen C. Robinson, was adjourned pending reassignment. On November 15, 2010, the case was reassigned to the undersigned. II. Preliminary Injunction Standard The Second Circuit recently revised the test for issuing a preliminary injunction, in accordance with the Supreme Court’s decision in eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). See Salinger v. Colting, 607 F.3d 68, 77 (2d Cir.2010). Under the current test, in order to grant a preliminary injunction, a district court must determine that a plaintiff has shown: (1) a likelihood of success on the merits; (2) that absent an injunction Plaintiff is likely to suffer irreparable injury that cannot be remedied with monetary damages; (3) that the balance of hardships tips in favor of Plaintiff; and (4) that “the public interest would not be disserved” by the issuance of an injunction. Salinger, 607 F.3d at 79-80 (quoting eBay, Inc., 547 U.S. at 391,126 S.Ct. 1837). III. Analysis A. Likelihood of Success on the Merits The Court finds that Plaintiff has demonstrated a likelihood of success on the merits of his lawsuit. Plaintiffs principal claim is one for trademark infringement under the Lanham Act. Section 43(a) of the Lanham Act states Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which ... is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or" }, { "docid": "3082195", "title": "", "text": "Lewis, 346 F.3d 841, 844 (8th Cir.2003), we likewise focus on this factor to determine whether the district court abused its discretion in this instance. Novus claims the district court abused its discretion when it determined Novus would not suffer irreparable harm because Minnesota courts infer irreparable harm from the breach of a valid and enforceable non-compete clause. See Edin v. Jostens, Inc., 343 N.W.2d 691, 694 (Minn.Ct.App.1984) (“In a proper case irreparable harm to the employer may be inferred if it can be shown that the employee breached an enforceable restrictive covenant.”). Dawson counters that Novus is not entitled to an inference of irreparable harm in this case for two reasons. First, Dawson argues a recent Supreme Court decision undermines Minnesota’s rule of inferring irreparable harm. In eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006), the Supreme Court rejected a “general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances.” Id. at 391, 126 S.Ct. 1837. The Court explained that it “has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed.” Id. at 392-93, 126 S.Ct. 1837. Dawson argues eBay’s holding requires courts to view as suspect any general rule creating a presumption or an inference in favor of automatically imposing an injunction. Indeed, the Eleventh Circuit has suggested “a strong case can be made that eBay’s holding necessarily extends to the grant of preliminary injunctions” in contexts other than patent infringement cases. North Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1228 (11th Cir.2008) (considering, but ultimately not deciding, whether eBay’s prohibition against presumptions would apply to a preliminary injunction under the Lanham Act); see also Salinger v. Colling, 607 F.3d 68, 77-78 (2d Cir.2010) (applying eBay’s holding to preliminary injunctions issued for alleged copyright infringement); Seed Servs., Inc. v. Winsor Grain, Inc., 868 F.Supp.2d 998, 1005 (E.D.Cal.2012) (refusing to “assume the existence of irreparable injury” in a trademark infringement case based on eBay). Second, Dawson argues the long delay" }, { "docid": "20905462", "title": "", "text": "MercExchange, LLC, 547 U.S. 388, 392-93, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006) (“[T]his Court has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed.”); see also Salinger v. Colting, 607 F.3d 68, 78 n. 7 (2d Cir.2010) (“[Although today we are not called upon to extend eBay beyond the context of copyright cases, we see no reason that eBay would not apply with equal force to an injunction in any type of case.”). A plaintiff “seeking a permanent injunction still must satisfy the traditional four-factor test before the district court may use its equitable discretion to grant such relief.” Warner Bros. Entm’t Inc. v. RDR Books, 575 F.Supp.2d 513, 551 (S.D.N.Y.2008). Specifically, a plaintiff must demonstrate: (1) that it will suffer an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the • plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. Id. at 551-52 (citing, inter alia, eBay, 547 U.S. at 391, 126 S.Ct. 1837). III. Discussion As noted, the Beastie Boys seek to broadly enjoin Monster from using the Beastie Boys’ music, voices, names, and trademarks for any advertising or trade-related purpose, whereas Monster argues that, if the Court decides to issue a permanent injunction at all, that relief should be limited to the Ruckus video. The Court first considers the merits of the narrower injunction, then addresses the more expansive injunction sought by the Beastie Boys. As to the Ruckus video — which Monster concedes infringed the Beastie Boys’ copyrights, and the jury found infringed their trademarks — the Beastie Boys satisfy the four-factor test. Starting with the first factor, “[hjarm might be irremediable, or irreparable, for many reasons, including that a loss is difficult to replace or difficult to measure, or that it is a loss that one should not be expected to -suffer.” Salinger, 607 F.3d at" }, { "docid": "23109741", "title": "", "text": "U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). We agree that eBay abrogated parts of this Court’s preliminary injunction standard in copyright cases, and accordingly, this case must be remanded to the District Court to reevaluate Salinger’s preliminary injunction motion. In light of that holding, we need not decide whether the preliminary injunction issued by the District Court constituted an unconstitutional prior restraint on speech. eBay involved the propriety of a permanent injunction after a finding of patent infringement. The United States District Court for the Eastern District of Virginia had ostensibly applied the traditional four-factor test for, determining whether a permanent injunction should issue: Issuance of injunctive relief against [the defendants] is governed by traditional equitable principles, which require consideration of (i) whether the plaintiff would face irreparable injury if the injunction did not issue, (ii) whether the plaintiff has an adequate remedy at law, (iii) whether granting the injunction is in the public interest, and (iv) whether the balance of the hardships tips in the plaintiffs favor. MercExchange, L.L.C. v. eBay, Inc., 275 F.Supp.2d 695, 711 (E.D.Va.2003) (quotation marks omitted). In its application of this test, however, the district court “appeared to adopt certain expansive principles suggesting that injunctive relief could not issue in a broad swath of cases.” eBay, 547 U.S. at 393,126 S.Ct. 1837. Specifically, the district court found that “the evidence of the plaintiffs willingness to license its patents, its lack of commercial activity in practicing the patents, and its comments to the media as to its intent with respect to enforcement of its patent rights, are sufficient to rebut the presumption that it will suffer irreparable harm if an injunction does not issue.” eBay, 275 F.Supp.2d at 712. The Federal Circuit reversed on appeal, applying a “general rule ... that a permanent injunction will issue once infringement and validity have been adjudged.” MercExchange, L.L.C. v. eBay, Inc., 401 F.3d 1323, 1338 (Fed.Cir.2005). The court cited for this rule Richardson v. Suzuki Motor Co, which equates the “general rule” with a rule that “[i]n matters involving patent rights, irreparable harm has been presumed when" }, { "docid": "15914373", "title": "", "text": "recovered in a civil ■ case. See 28 U.S.C. § 1961; STMicroelectronics, N.V. v. Credit Suisse Sec. (USA) LLC, 648 F.3d 68, 83 (2d Cir.2011). Post-judgment interest is measured “from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield ... for the calendar week preceding the date of the judgment,” “computed daily to the date of payment” and “compounded annually.” 28 U.S.C. § 1961(a)-(b). The Court awards plaintiffs post-judgment interest calculated in this manner. C. Injunctive Relief Rovio seeks a permanent injunction in order to prevent the Toy Amazon defendants from engaging in future violations of Rovio’s. intellectual property in Angry Birds. A district court has authority under the Lanham Act and the Copyright Act to grant injunctive relief to prevent further violations of a plaintiffs trademarks and copyrights. 15 U.S.C. § 1116; 17 U.S.C. § 502. A court may grant a permanent injunction on a motion for default judgment. See, e.g., Harris v. Fairweather, No. 11 Civ. 2152(PKC)(AJP), 2012 WL 3956801, at *9-10, 2012 U.S. Dist. LEXIS 128409, at *38-39 (S.D.N.Y. Sept. 10, 2012); Pitbull Prods., Inc. v. Universal Netmedia, Inc., No. 07 Civ. 1784(RMB)(GWG), 2007 WL 3287368, at *5, 2007 U.S. Dist LEXIS 82201, at *13-14 (S.D.N.Y. Nov. 7, 2007). A court may issue such a permanent injunction based on its consideration of (1) the likelihood that plaintiff will suffer irreparable harm if an injunction is not granted; (2) whether remedies at law such as monetary damages are inadequate to compensate plaintiff for that harm; (3) the balance of hardships; and (4) whether the public interest would not be disserved by a permanent injunction. Salinger v. Colting, 607 F.3d 68, 77-78 (2d Cir.2010) (explaining that this standard, which was articulated by the Supreme Court in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006), applies in copyright actions); see also U.S. Polo Ass’n, Inc. v. PRL USA Holdings, Inc., 800 F.Supp.2d 515, 539 & n. 16 (S.D.N.Y.2011) (eBay/Salinger standard also applies in trademark infringement actions). All of these factors militate" }, { "docid": "20273776", "title": "", "text": "no basis on which the district court rationally could have made its decision or if the judicial action is arbitrary, fanciful or clearly unreasonable.” Datascope Corp. v. SMEC, Inc., 879 F.2d 820, 828 (Fed.Cir.1989) (quoting PPG Indus., Inc. v. Celanese Polymer Specialties Co., 840 F.2d 1565, 1572 (Fed.Cir.1988) (Bissel, J., concurring)). “To the extent the court’s decision is based upon an issue of law, we review that issue de novo.” Ecolab, 569 F.3d at 1352 (quoting Sanofi-Synthelabo v. Apotex, Inc., 470 F.3d 1368, 1374 (Fed.Cir. 2006)). Discussion Consistent with traditional equitable principles, a patentee seeking a permanent injunction must make a four-part showing: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and the defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). Prior to the Supreme Court’s decision in eBay, this court followed the general rule that a permanent injunction will issue once infringement and validity have been adjudged, absent a sound reason to deny such relief. See, e.g., Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1247 (Fed.Cir.1989) (citing W.L. Gore & Assocs., Inc. v. Garlock, Inc., 842 F.2d 1275, 1281 (Fed.Cir.1988)). In addition, at least in the context of preliminary injunctive relief, we applied an express presumption of irreparable harm upon finding that a plaintiff was likely to succeed on the merits of a patent infringement claim. See Smith Int’l, Inc. v. Hughes Tool Co., 718 F.2d 1573, 1581 (Fed.Cir.1983) (“We hold that where validity and continuing infringement have been clearly established, as in this case, immediate irreparable harm is presumed.” (footnotes omitted)). Based on our case law, district courts also have applied a presumption of irreparable harm following judgment of infringement and validity to support the issuance of permanent injunctions. See, e.g., Fisher-Price, Inc. v. Safety 1st, Inc., 279 F.Supp.2d 526, 528-29" }, { "docid": "5044951", "title": "", "text": "Notes (the “Note Holders”). Failure to make the interest payment would have resulted in an event of default, but Angiotech’s Note Holders agreed to exchange $250 million in face amount of notes for equity in Angiotech. Nonetheless, Angiotech continues to suffer financially. On November 19, 2010, Rex moved by order to show cause for a temporary restraining order and a preliminary injunction enjoining Angiotech from terminating the Agreement pending the conclusion of arbitration proceedings commenced by Rex. The Court issued a temporary restraining order on November 19, and scheduled a hearing on Rex’s preliminary injunction motion for November 29, 2010. For the reasons discussed below, Rex’s motion for a preliminary injunction in aid of arbitration is granted. II. DISCUSSION A. Rex’s Request For A Preliminary Injunction Is Granted. In Salinger v. Colting, 607 F.3d 68, 74-75 (2d Cir.2010), the Second Circuit concluded that its “longstanding standard for preliminary injunctions ... is inconsistent with the ‘test historically employed by courts of equity’ and has, therefore, been abrogated by eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006).” In Salinger, the court held that a preliminary injunction should issue upon a showing of a plaintiffs likelihood of success on the merits only where the plaintiff has also shown that: (1) “he is likely to suffer irreparable injury in the absence of an injunction”; (2) “remedies at law, such as monetary damages, are inadequate to compensate for that injury”; (3) the balance of hardships tips in his favor; and (4) “the ‘public interest would not be disserved’ by the issuance of a preliminary injunction.” Id. at 80 (quoting eBay, 547 U.S. at 391, 126 S.Ct. 1837). Although the Salinger court indicated that its holding was “limited to preliminary injunctions in the context of copyright cases,” the court also stated that it saw “no reason that eBay would not apply with equal force to an injunction in any type of case.” Salinger, 607 F.3d at 78 n. 7 (emphasis in original). As this Court explained in New York City Triathlon, LLC v. NYC Triathlon Club, Inc., 704 F.Supp.2d" }, { "docid": "20036563", "title": "", "text": "Patent and Trademark Office.” 15 U.S.C. § 1116(a); see Phillip Morris U.S.A. Inc., 2005 WL 2076921 at *5. A permanent injunction is warranted where a party has succeeded on the merits, Roach v. Morse, 440 F.3d 53, 56 (2d Cir.2006), and establishes: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and the defendant, a remedy in equity is warranted; and (4) that the public interest would not be dis-served by a permanent injunction. Salinger v. Colting, 607 F.3d 68, 77 (2d Cir.2010) (quoting eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)); see also U.S. Polo Ass’n, Inc. v. PRL USA Holdings, Inc., 800 F.Supp.2d 515, 539, No. 09-CV-9476, 2011 WL 1842980, at *19-20 (S.D.N.Y. May 13, 2011) (reasoning that “Salinger suggest that [trademark infringement] cases should be analyzed under the standards for injunctive relief articulated by the Supreme Court in eBay Inc.”). Plaintiff has already prevailed on the merits of the case. Furthermore, “proof of likelihood of confusion establishes both likelihood of success on the merits and irreparable harm.” Brennan’s Inc. v. Brennan’s Rest., 360 F.3d 125, 129 (2d Cir.1997). The monetary damages that I recommend are inadequate to compensate for the injury. If Defendants are allowed to continue their use of Plaintiffs marks, it may adversely affect Plaintiffs business dealings and future negotiations in ways that may be difficult to quantify. Without an injunction, Defendants may feel that they are free to continue using the marks once they have paid the $325,000 in damages. Balancing the relative hardships also favors granting Plaintiff a permanent injunction. Absent injunctive relief, Defendants may continue using the marks without authorization and Plaintiff will have to expend further resources to stop the infringement. Further, any harm to Defendants would not outweigh the irreparable harm and damage to Plaintiff should they continue to disobey the law. An injunction will not prevent Defendants from continuing to engage in their business of" }, { "docid": "20036562", "title": "", "text": "other grounds, 158 F.3d 631 (2d Cir.1998). Accordingly, I find that based on the facts alleged in the complaint, $325,000 is an appropriate award for damages. 3. Attorney’s Fees Plaintiff chose not to pursue attorney’s fees if the Court grants statutory damages. (PL Supp. Mot. 15.) I decline to recommend any attorney’s fees or costs because I agree with Plaintiff that the recommended statutory damages adequately compensate Plaintiff. 4. Injunctive Relief In addition to damages, Plaintiff also seeks a permanent injunction restraining and enjoining Defendants from using the DUKE ELLINGTON trademarks. (Compl. at wherefore clause ¶ 2.) It also requests a turnover of all, inter alia, products bearing the DUKE ELLINGTON trademarks and an affidavit confirming that Defendants have complied with the injunction. (Compl. at wherefore clause ¶¶ 3-4.) Section 34(a) of the Lanham Act provides Courts with the “power to grant injunctions, according to the principles of equity and upon such terms as the Court may deem reasonable, to prevent the violation of any right of the registrant of a mark registered in the Patent and Trademark Office.” 15 U.S.C. § 1116(a); see Phillip Morris U.S.A. Inc., 2005 WL 2076921 at *5. A permanent injunction is warranted where a party has succeeded on the merits, Roach v. Morse, 440 F.3d 53, 56 (2d Cir.2006), and establishes: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and the defendant, a remedy in equity is warranted; and (4) that the public interest would not be dis-served by a permanent injunction. Salinger v. Colting, 607 F.3d 68, 77 (2d Cir.2010) (quoting eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)); see also U.S. Polo Ass’n, Inc. v. PRL USA Holdings, Inc., 800 F.Supp.2d 515, 539, No. 09-CV-9476, 2011 WL 1842980, at *19-20 (S.D.N.Y. May 13, 2011) (reasoning that “Salinger suggest that [trademark infringement] cases should be analyzed under the standards for injunctive relief articulated by the Supreme Court in" }, { "docid": "20023469", "title": "", "text": "have often applied a presumption of irreparable harm upon a finding that a plaintiff was likely to succeed on the merits of his claim in a trademark infringement action. See, e.g., Zino Davidoff SA v. CVS Corp., 571 F.3d 238, 246-47 (2d Cir.2009); Weight Watchers Int’l, Inc. v. Luigino’s, Inc., 423 F.3d 137 (2d Cir.2005); see also Syler v. Woodruff, 610 F.Supp.2d 256, 262-63 (S.D.N.Y.2009). However, the Second Circuit’s recent decision in Salinger v. Colting, 607 F.3d 68 (S.D.N.Y.2010), calls into question the propriety of that presumption, insofar as the Salinger court held that the analogical presumption of irreparable harm in copyright infringement actions was inconsistent with the standard for injunctive relief pronounced in eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). See Salinger, 607 F.3d at 74-75. The Salinger court explained that its holding was limited to the copyright context, id. at 78 n. 7, but this Court can find no principled basis on which to distinguish copyright from trademark infringement actions. Accordingly, and without deciding whether eBay also alters the presumption of irreparable harm in the context of a trademark infringement action, this Court applies Salinger’s articulation of the standard for injunctive relief. Since the showing required under Salinger is stronger than the pre-Salinger standard, because a plaintiff must make an independent showing of irreparable harm, a plaintiff who discharges his burden under Salinger does so under any standard. Plaintiff in this case has presented the Court with sufficient evidence to support an independent finding of irreparable harm. Plaintiff has invested substantial effort into making the NYC Triathlon financially successful and well-known as a premiere international racing event. (Korff Decl. ¶¶ 25, 38.) Plaintiff has amassed substantial goodwill and a very favorable reputation during its ten years of operation (id. ¶ 28), which will suffer if Defendant is allowed to continue using its Club Marks. Among other things, the Court finds it likely that consumers will believe (erroneously) that signing up for Defendant’s club will offer them an advantage in signing up for the New York City Triathlon itself, as is" }, { "docid": "8898131", "title": "", "text": "not the product of legal error or a clearly erroneous factual finding, cannot be located within the range of permissible decisions. Id. Our decisions identify four factors relevant to granting a preliminary injunction for copyright infringement. First, a district court may issue a preliminary injunction “only if the plaintiff has demonstrated either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the plaintiffs favor.” Salinger v. Colting, 607 F.3d 68, 79 (2d Cir.2010) (internal citation and quotation marks omitted). Second, a plaintiff seeking a preliminary injunction must demonstrate “ ‘that he is likely to suffer irreparable injury in the absence of ” an injunction. Id. at 79-80 (quoting Winter v. Natural Res. Def. Council, 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). A court may not presume irreparable injury in the copyright context; rather the plaintiff must demonstrate actual harm that cannot be remedied later by damages should the plaintiff prevail on the merits. Id. at 80 (citing eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)). Third, a district court “must consider the balance of hardships between the plaintiff and defendant and issue the injunction only if the balance of hardships tips in the plaintiffs favor.” Id. Fourth and finally, “the court must ensure that ‘the public interest would not be disserved’ by the issuance of a preliminary injunction.” Id. (quoting eBay, 547 U.S. at 391, 126 S.Ct. 1837). The outcome of this appeal turns on whether Aereo’s service infringes the Plaintiffs’ public performance right under the Copyright Act. The district court denied the injunction, concluding, as mentioned above, that (1) Plaintiffs were not likely to prevail on the merits given our prior decision in Cablevision and (2) the balance of hardships did not tip “decidedly” in the Plaintiffs’ favor. Aereo, 874 F.Supp.2d at 405. Plaintiffs’ likelihood of success on the merits depends on whether Aereo’s service infringes Plaintiffs’ copyrights. And, as we discuss further" }, { "docid": "8898132", "title": "", "text": "the plaintiff prevail on the merits. Id. at 80 (citing eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)). Third, a district court “must consider the balance of hardships between the plaintiff and defendant and issue the injunction only if the balance of hardships tips in the plaintiffs favor.” Id. Fourth and finally, “the court must ensure that ‘the public interest would not be disserved’ by the issuance of a preliminary injunction.” Id. (quoting eBay, 547 U.S. at 391, 126 S.Ct. 1837). The outcome of this appeal turns on whether Aereo’s service infringes the Plaintiffs’ public performance right under the Copyright Act. The district court denied the injunction, concluding, as mentioned above, that (1) Plaintiffs were not likely to prevail on the merits given our prior decision in Cablevision and (2) the balance of hardships did not tip “decidedly” in the Plaintiffs’ favor. Aereo, 874 F.Supp.2d at 405. Plaintiffs’ likelihood of success on the merits depends on whether Aereo’s service infringes Plaintiffs’ copyrights. And, as we discuss further below, the balance of hardships is largely a function of whether the harm Aereo would suffer from the issuance of an injunction is legally cognizable, which in turn depends on whether Aereo is infringing the Plaintiffs’ copyrights. See ivi, 691 F.3d at 287. As a result, a preliminary injunction can only be granted if Plaintiffs can show that Aereo infringes their public performance right. We now turn to that issue. I. The Public Performance Right The 1976 Copyright Act (the “Act”) gives copyright owners several exclusive rights and then carves out a number of exceptions. The fourth of these rights, at issue in this appeal, is the copyright owner’s exclusive right “in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly.” 17 U.S.C. § 106(4). The Act defines “perform” as “to recite, render, play, dance, or act [a work], either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work," }, { "docid": "23109736", "title": "", "text": "the Court deemed the only remaining question to be whether Salinger had shown that he would be irreparably harmed if an injunction was not granted. Because Salinger had established a prima facie case of copyright infringement, and in light of how the District Court, understandably, viewed this Court’s precedents, the District Court presumed irreparable harm without discussion. Id. at 268 (citing ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 66 (2d Cir.1996)). In a footnote, the Court stated: Although Defendants contend that eBay, Inc. v. MercExchange, 547 U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006), undermines the validity of this presumption, that case dealt only with the presumption of irreparable harm in the patent law context, and thus is not controlling in the absence of Second Circuit precedent applying it in the copyright context. Id. at 268 n. 6. DISCUSSION We hold that, although the District Court applied our Circuit’s longstanding standard for preliminary injunctions in copyright cases, our Circuit’s standard is inconsistent with the “test historically em ployed by courts of equity” and has, therefore, been abrogated by eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 390, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). I. The Copyright Act of 1976 authorizes courts to “grant temporary and final injunctions on such terms as [they] may deem reasonable to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502(a). And, as the District Court stated, this Court has long issued preliminary injunctions in copyright cases upon a finding of (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. See, e.g., NXIVM Corp. v. Ross Inst., 364 F.3d 471, 476 (2d Cir.2004); ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 64 (2d Cir.1996); Video Trip Corp. v. Lightning Video, Inc., 866 F.2d 50, 52 (2d Cir.1989); Wainwright Sec., Inc. v. Wall St. Transcript Corp., 558 F.2d 91, 94 (2d Cir.1977). Thus," } ]

[ { "docid": "16942600", "title": "", "text": "some of the defendants because they committed fraud. The District Court did not consider this argument, however, because Concordia failed to raise the issue in response to defendants’ motion for summary judgment. The District Court declined to hear Concordia’s evidence of alleged fraud offered after summary judgment had been granted and denied Concor-dia’s motion, made pursuant to Federal Rule of Civil Procedure 59(e), to alter or amend the judgment. Concordia now contends that it was lulled into inaction because W.R. Grace allegedly had neither taken the position in its briefs in support of its motion for summary judgment that class action tolling was per se inapplicable, see discussion infra, at 331-r32, nor had it relied upon the two-year statute of limitations in its argument. We fail to see how W.R. Grace’s alleged actions excuse Concordia’s failure to raise the fraud issue. The summary judgment motion sought to throw out Concordia’s suit based on operation of section 541.051. Concordia cannot now claim that it was not on notice that evidence of fraud, which might toll the statute, would be relevant in response to a motion for judgment based on operation of this statute of limitations and repose. We review the District Court’s denial of Concordia’s motion to alter or amend for abuse of discretion. Hagerman v. Yukon Energy Corp., 839 F.2d 407, 413 (8th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 63, 102 L.Ed.2d 40 (1988). Finding none, we affirm. “A motion to alter or amend judgment cannot be used to raise arguments which could have been raised prior to the issuance of judgment.” Id. at 414. As the District Court correctly found, Concordia could not use a Rule 59(e) motion “to introduce new evidence that could have been adduced during pendency of the summary judgment motion.... Nor should a motion for reconsideration serve as the occasion to tender new legal theories for the first time.” Id. (citations to quoted cases omitted). The District Court did not abuse its broad discretion in concluding that Concordia was improperly attempting to raise, via a motion to alter or amend, arguments that it" } ]

[ { "docid": "22126319", "title": "", "text": "judgment After the district court had dismissed his complaint and Arthur had appealed that dismissal, Arthur timely filed a motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e) in the district court. In this motion, he argued, inter alia, that a new affidavit from Ray Melson provided evidence of Arthur’s innocence. In support of this motion, he submitted three affidavits from Melson and an affidavit from Stephen Gustat. The affidavits from Melson provide Arthur with an alibi, recant that alibi, and repudiate the recantation. The district court discredited Melson’s third affidavit because it was unsworn, created more questions than it answered regarding Melson’s credibility, “actually diminishe[d] the value of anything Melson may have [had] to say to the point of no credibility at all,” and was filed only as “a last-minute effort” because it was not filed earlier. Arthur XXI, 2007 WL 2539962 at *2. It concluded that Arthur’s argument that he was not afforded significant procedural safeguards was considered on habe-as, that he failed to raise his ineffective assistance of counsel claim in his initial § 1983 complaint, and that the court had properly considered Arthur’s delay in dismissing his complaint. Id. 2007 WL 2539962 at *2-3. We review the denial of a Rule 59 motion for abuse of discretion. Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir.2006). “The only grounds for granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or fact.” In re Kellogg, 197 F.3d 1116, 1119 (11th Cir.1999). “[A] Rule 59(e) motion [cannot be used] to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir.2005). Arthur cannot show that the district court abused its discretion in denying his motion to alter or amend the judgment. Because Melson’s affidavit was unsworn, it was not properly considered by the district court. See Holloman v. Jacksonville Housing Auth., No. 06-10108, 2007 WL 245555 at *2, — Fed.Appx. - (per curiam) (“unsworn statements, even from pro se parties," }, { "docid": "14729903", "title": "", "text": "(“It is well established that ‘plaintiff[s] may not, through summary judgment briefs, raise new claims’ where such claims were ‘not raise[d][ ] in [the] complaint’ and plaintiffs have ‘not file[d] an amended complaint.’ ”). Even if the Court were to construe plaintiffs pleadings as a motion to amend his complaint to challenge the adequacy of those searches, that motion would fail because he has not satisfied Rule 59(e)’s stringent standard for setting aside the prior judgment and re-opening the proceedings on Counts II and II. See Ciralsky v. CIA, 355 F.3d 661, 673 (D.C.Cir.2004), quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996) (per curiam) (“[0]nce a final judgment has been entered, a court cannot permit an amendment [of the complaint] unless the plaintiff ‘first satisfies] Rule 59(e)’s more stringent standard’ for setting aside that judgment.”). Second, the Court has already ruled that defendants conducted an adequate search with respect to the FOIA request referenced in Count IV, and plaintiffs affidavit is not the proper vehicle to ask the Court to reconsider that decision. Even if the Court were to construe plaintiffs pleadings as requests for reconsideration under Fed.R.Civ.P. 54(b), such requests would fail because plaintiff has proffered no new evidence, he has failed to demonstrate that the Court’s August 2012 opinion was legally erroneous or manifestly unjust, and he has raised “no arguments for reconsideration the court had not already rejected on the merits.” Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C.Cir.2011). For example, in his May 2013 declaration, plaintiff contends that “[although the Court ruled on the adequacy of the CDC’s search [in Count IV], there was no ruling regarding the appropriateness of [Dr. Robert Chen, then Director of CDC’s Immunization Safety Office] destroying his email replies in light of the Federal Records Act of 1950 as amended.” Pl.’s May 2013 Decl. at 22. But the Court addressed Dr. Chen’s email 'retention procedures in its Count IV analysis and held that “the agency’s search for Dr. Chen’s email responses was adequate” in light of defendants’ “repeated efforts to address plaintiffs concerns.” Hooker, 887" }, { "docid": "23513305", "title": "", "text": "appellate defense counsel made no motion before, during, or after the Court of Military Review's decision was issued in this case to disqualify these judges. See RCM 902(d)(1). Moreover, when questioned during oral argument on this matter, appellate defense counsel indicated no concern for this irregular procedure. See RCM 801(g). Cf. RCM 902(e). Finally, we have closely examined these concurring opinions and disregarded any comments by these judges which might be considered testimony in this case. Art. 59(a), UCMJ, 10 USC § 859(a). . A trial judge or an appellate military judge must apply this standard in determining whether he should disqualify himself on request of a party or on his own motion. RCM 902(a). See generally Liteky v. United States, - U.S. -, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). In reviewing their decisions on these questions, appellate courts normally employ an abuse-of-discretion standard. See generally S. Childress and M. Davis, Federal Standards of Review § 12:05 at 12-35: Judicial Disqualification (2d ed. 1992). However, the appellate standard for determining an abuse of discretion by a trial judge may vary in the different United States Courts of Appeals. (1) In Re United States, 666 F.2d 690, 695 (1st Cir.1981) (no reasonable person could likewise conclude). (2) United States v. Kelly, 888 F.2d 732, 745 (11th Cir.1989); Hewlett Packard Co. v. Bausch & Lomb, Inc., 882 F.2d 1556, 1567 (Fed. Cir.1989) (clear error of judgment), cert, denied, 493 U.S. 1076, 110 S.Ct. 1125, 107 L.Ed.2d 1031 (1990). (3) United States v. Diaz, 797 F.2d 99,-100 (2d Cir.1986); Chitimacha Tribe of Louisiana v. Harry L. Laws Co. Inc., 690 F.2d 1157, 1161 (5th Cir.1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983); United States v. Story, 716 F.2d 1088, 1091 (6th Cir.1983) [no reasonable basis in record of trial]. (4) Johnston v. Trueblood, 629 F.2d 287, 290 (3d Cir.1980), cert. denied, 450 U.S. 999, 101 S.Ct. 1704, 68 L.Ed.2d 200 (1981); United States v. Carmichael, 726 F.2d 158, 161 (4th Cir.1984); In Re Hale, 980 F.2d 1176, 1178 (8th Cir.1992); Yagman v. Republic Insurance, Inc., 987 F.2d" }, { "docid": "19803051", "title": "", "text": "Bryce, 289 F.3d at 654; both “may serve as a barrier to the success of a plaintiffs claims, but [neither] affect[s] the court’s authority to consider them.” Petrusha, 462 F.3d at 303. Therefore, our holding in Bryce that a motion to dismiss based on the church autonomy doctrine should be considered under Rules 12(b)(6) or 56 rather than 12(b)(1) is equally applicable in cases involving the ministerial exception. We accordingly hold the district court did not err in converting the Diocese’s motion to one for summary judgment. Having addressed the Diocese’s cross-appeal, we now turn to the issues raised by the Appellant. First, Appellant alleges the trial court erred by denying her request for an extension of time to file her supplemental brief and by not granting her motion to compel. We review both the district court’s decision to deny Appellant’s request for an extension of time and its decision to grant summary judgment before ruling on Appellant’s motion to compel for an abuse of discretion. See Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1193 (10th Cir.1998) (reviewing for abuse of discretion the denial of an extension of time under Federal Rule of Civil Procedure 6(b)); Campfield v. State Farm Mut. Auto. Ins. Co., 532 F.3d 1111, 1124 (10th Cir.2008) (reviewing for abuse of discretion a decision not to rule on a “pending discovery motion” before granting summary judgment). Appellant argues the court abused its discretion because she had “not had the opportunity to discover information that [wa]s essential to [her] opposition.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We begin by noting Appellant did not file an affidavit under Rule 56(f) and has thus “waived the argument that the grant of summary judgment should be set aside for lack of sufficient discovery.” Campfield, 532 F.3d at 1124. However, even if we ignore Appellant’s waiver, there was no abuse of discretion because Appellant has not explained “why facts precluding summary judgment [could] not be presented.” Id. The only relevant evidence that Appellant claims to be seeking" }, { "docid": "14234216", "title": "", "text": "the extent to which each of the RICO defendants “conducted” the enterprise, either directly or indirectly. The court therefore did not improperly dismiss plaintiffs complaint without the benefit of argument on the ground the court found dispositive. If plaintiff wished he had made more thorough arguments on the “conduct” issue in his brief or oral arguments, or felt he should be given leave to argue the issue further after it was raised, he should have sought leave to do so at the oral arguments. A motion to reconsider is not the proper place to raise arguments that could have been raised prior to the issuance of judgment. Concordia College Corp. v. W.R. Grace & Co., 999 F.2d 326, 330 (8th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 926, 127 L.Ed.2d 218 (1994). Thus, the critical question here is whether the court’s dismissal of the RICO claim was legally, not procedurally, proper. A.' Standards For Motions To Reconsider Although the Eighth Circuit Court of Appeals has commented on the “dangers of filing a self-styled ‘motion for reconsideration’ that is not described by any particular rule of federal civil procedure,” it has also identified the usual bases upon which such motions are construed to have been made in Sanders v. Clemco Indus., 862 F.2d 161 (8th Cir.1988): Federal courts have construed this type of motion as arising under either Rule 59(e) (motion to alter or amend the judgment) or Rule 60(b) (relief from judgment for mistake or other reason). See Spinar v. South Dakota Bd. of Regents, 796 F.2d 1060, 1062 (8th Cir.1986). The two rules • serve different purposes and produce different consequences, both substantive and procedural. See A.D. Weiss Lithograph Co. v. Illinois Adhesive Prods. Co., 705 F.2d 249, 249-50 (7th Cir.1983) (per cu-riam). When the moving party fails to specify the rule under which it makes a ■ postjudgment motion, that party leaves the characterization of the motion to the court’s somewhat unenlightened guess, subject to the hazards of the unsuccessful moving party losing the opportunity to present the merits underlying the motion to an appellate court because" }, { "docid": "15056731", "title": "", "text": "& S relies heavily on a letter Liberty National sent to Snyder as evidence that Liberty National solicited Supermarket’s renewals. The letter, however, was nothing more than a customer service letter sent to all new clients, and it did not solicit Supermarket’s future business. Because the unrebutted evidence showed that Supermarket approached Liberty National, and because the interests of the insured are paramount to the ownership interest of the agent, the contract was not breached. D & S’s breach of contract claim thus fails. We find it significant that D & S could have attempted to find another insurer for Supermarket without interference from Liberty National but did not attempt to do so. Thus, D & S rendered no service for the renewals. It follows that D & S’s claim for inducing breach of contract also fails. The Fred Miller analysis also invalidates D & S’s tortious interference and conspiracy claims. Although Fred Miller involved Missouri law, the case was not based on any concept unique to Missouri, but was instead based on concepts generally applicable to the insurance industry. The tortious interference claim requires intentional misconduct, see Noller v. GMC Truck & Coach Din, 13 Kan.App.2d 13, 760 P.2d 688, 698-99 (1988), rev’d in part on other grounds, 244 Kan. 612, 772 P.2d 271 (1989), and the conspiracy claim requires an unlawful act, see State ex rel. Mays v. Ridenhour, 248 Kan. 919, 811 P.2d 1220, 1226 (1991), on Liberty National’s part. Because Supermarket approached Liberty National, defendants did nothing wrong. In any event, as to the conspiracy claim, we are persuaded by Liberty National’s argument that two subsidiaries of the same parent cannot conspire. See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771, 104 S.Ct. 2731, 2741-42, 81 L.Ed.2d 628 (1984) (parents and subsidiaries cannot conspire); City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 277 (8th Cir.1988) (sister corporations cannot conspire). Finally, we find that the district court correctly granted summary judgment on D & S’s claim that Liberty National made fraudulent misrepresentations at the time of contracting and accepting the Supermarket business." }, { "docid": "15056733", "title": "", "text": "To prevail on a fraudulent misrepresentation claim, D & S would have to show that Liberty National knowingly made false representations to it. See Unified Sch. Dist. No. 500 v. United States Gypsum, Co., 788 F.Supp. 1173, 1176 (D.Kan.1992) (elements of claim). The district court correctly found that the evidence was insufficient for a jury to make such a finding by clear and convincing evidence, as fraud is never presumed. See Waxse v. Reserve Life Ins. Co., 248 Kan. 582, 809 P.2d 533, 536 (1991). D & S presented no direct evidence that Liberty National knowingly made false representations to it. We find that the district court did not abuse its discretion in denying D & S leave to file supplemental opposition to defendants’ motion for summary judgment. See Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse-Wisconsin, Inc., 991 F.2d 1249, 1257 (7th Cir.1993) (standard of review). D & S attempted to file twenty-eight pages of supplemental suggestions in opposition and an additional affidavit after defendants had already replied to D & S’s opposition. D & S argued that the defendants had raised new arguments in the reply. The district court noted that D & S had already been allowed to file opposition twice the page limit provided by the local rule. We find no new arguments in defendants’ reply, nor any other reason why D & S did not submit the additional evidence with its initial response to the motion for summary judgment. The affidavit of Rebecca Hoffman, a former Gaines employee, proffered by D & S, consisted of speculation and hearsay testimony that would not have been admissible to prove the allegations at trial. See JRT, Inc., 52 F.3d at 737 (successful summary judgment defense requires more than inadmissible, hearsay-based affidavit). We also find unpersuasive D & S’s contention that Liberty National was barred from raising in its motion for summary judgment the argument that Supermarket had first contacted Liberty National concerning renewals. D & S’s complaint stated that defendants had contacted Associated Grocers for the renewals, an allegation the defendants denied in" }, { "docid": "13721273", "title": "", "text": "ran afoul of Zschernig. Appellees, surrogates of several New York counties, opposed the motion for summary judgment and further requested that the action be dismissed. In their accompanying affidavit, they argued that § 2218 was constitutional on its face and that there was at least a triable issue of fact whether it was being constitutionally applied. The District Court denied summary judgment, but did not dismiss the action. 299 F. Supp. 1389 (D. C. S. D. N. Y. 1968). In its opinion it held that §2218 was not unconstitutional on its face under Zschernig, and that the only reported post-Zschernig construction of the statute, Matter of Leikind, 22 N. Y. 2d 346, 239 N. E. 2d 550 (1968), app. docketed, No. 68, O. T. 1969, did not show unconstitutional application. From the order denying summary judgment, appellants took an appeal to this Court, claiming that we had jurisdiction under 28 U. S. C. § 1253, which provides: “Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.” Appellees did not oppose jurisdiction, but rather filed a motion to affirm. We noted probable jurisdiction, 394 U. S. 996 (1969), and received briefs and heard argument confined to the merits. Further examination of the case since oral argument has for the first time raised the question of our jurisdiction, and we have concluded that we lack jurisdiction of the appeal. A preliminary question is whether the District Court’s order denying summary judgment to a plaintiff who has requested injunctive relief is “an order . . . denying . . . an . . . injunction” within the meaning of § 1253. In construing the analogous provision giving the courts of appeals jurisdiction to hear appeals from interlocutory orders granting or denying injunctions, 28 U. S. C. § 1292 (a)(1), this Court has ruled that a denial of summary" }, { "docid": "8060559", "title": "", "text": "defense of section 1623(d). United States v. Denison, 663 F.2d 611, 617 (5th Cir.1981); United States v. Swainson, 548 F.2d 657, 663 (6th Cir.), cert. denied, 431 U.S. 937, 97 S.Ct. 2649, 53 L.Ed.2d 255 (1977); see United States v. Clavey 578 F.2d 1219, 1222 n. 5 (7th Cir.) (in banc) (per curiam) (Swygert, J., dissenting), cert. denied, 439 U.S. 954, 99 S.Ct. 351, 58 L.Ed.2d 345 (1978). In this case, defendant chose to plead guilty after he learned that the Government was prepared to introduce into evidence tape recordings of the meeting between his codefendant Marrapese and William Smith, which tended to prove defendant’s involvement in the crime for which he was charged. At that point, it had become manifest to defendant that the falsity of his trial testimony had been exposed. The recantation defense was then no longer available to him. We therefore hold that the district court did not err in denying defendant’s motion to dismiss and post-trial motion to reconsider on the grounds that prosecution was barred under section 1623(d). IV. Summary In summary, defendant has not made a sufficient showing of prejudice to support his claim that the district court abused its discretion in refusing to sever the conspiracy and perjury counts against him. Moreover, defendant did not satisfy the requirements of section 1623(d)’s bar to a perjury prosecution, and therefore the district court did not err in denying defendant’s motion to dismiss or motion to reconsider on those grounds. Accordingly, the judgment of the district court will be affirmed. . In its August 12, 1983, hearing on the motions to sever, the court engaged in the following colloquy with defense counsel: “MR. BALLIRO: Well, I’m glad to hear that, so am I, Your Honor. I have nothing to add at the present time but I would ask the Court to be mindful of the fact that the nature of a severance motion is such that as time goes on and other things become apparent it may be necessary for us to renew that motion. \"THE COURT: Well, if there are changes in circumstance the" }, { "docid": "15056726", "title": "", "text": "the policies directly with Supermarket, leaving D & S without a commission for the renewals. Liberty National argued, however, that because it did not solicit the renewals but was approached by Supermarket, the direct renewals were lawful. D & S argues on appeal that the district court chose the wrong law to apply to the breach of contract, fraudulent misrepresentation, and civil conspiracy claims, improperly excluded D & S’s supplemental opposition to the motion for summary judgment, improperly allowed Liberty National to raise an affirmative defense in its motion for summary judgment, and erred in granting defendants summary judgment on the merits. A district court applies the choice of law rules of the state in which it sits. We review the district court’s application of the state’s choice-of-law rule de novo. Educational Employees Credit Union v. Mutual Guar. Corp., 50 F.3d 1432, 1437 (8th Cir.1995). Missouri courts apply the significant relationship test found in the Restatement (Second) of Conflicts of Law (1971). Birnstill v. Home Sav. of America, 907 F.2d 795, 797 (1990). Athough the Restatement provides that the rights created by an insurance contract are governed by the state where the insured risk is located, no single location exists in this ease, as the Associated Grocers member stores are located in Missouri, Kansas, Oklahoma, and Arkansas. See Restatement (Second) of Conflicts of Law § 193 (1971). D & S argued to the district court that Missouri law should apply to the contract claim. The district court applied Missouri law, and D & S now argues on appeal that Kansas law should apply to the claim. The rule that we will not address arguments raised for the first time on appeal, see Andes v. Knox, 905 F.2d 188, 189 (8th Cir.), cert. denied, 498 U.S. 952, 111 S.Ct. 373, 112 L.Ed.2d 335 (1990), applies even more forcefully when the appellant took the opposite position in the district court. Thus, we will apply Missouri law to the contract claim. The district court correctly applied Kansas law to the remaining tort claims. Kansas, as D & S’s place of business, is where" }, { "docid": "10058603", "title": "", "text": "Oil Co., 640 P.2d 991, 995 (Okla.Ct.App.1981)). Marino argues that the court did abuse its discretion because according to Fed.R. Civ.P. 8(c) Otis’s failure to plead Marino’s negligence as an affirmative defense waives that defense and bars evidence on the point as a matter of law. Radio Corp. of Am. v. Radio Station KYFM, Inc., 424 F.2d 14, 17 (10th Cir.1970); see also Int’l Bhd. of Elec. Workers Locals 12, 111, 113 & 969 v. Professional Hole Drilling, Inc., 574 F.2d 497, 500 (10th Cir.1978); State Farm Mut. Auto Ins. Co. v. Mid-Continent Cas. Co., 518 F.2d 292, 296 (10th Cir.1975); C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1278 (1969). However, a distinction may be drawn — and was drawn by the court below —between the introduction of evidence in support of an affirmative defense and the introduction of the same evidence to refute the plaintiffs allegations of causation raised in the complaint and denied in the answer. Here, the court refused to permit the evidence in question to be considered for any purpose other than the refutation of the plaintiffs prima facie case. It refused to give an instruction to the jury regarding contributory negligence, thus guaranteeing that the evidence would not be used other than to disprove the plaintiffs case. See Radio Corp., 424 F.2d at 17. Thus, to the extent that Marino’s notching of the overshot is relevant to the question of causation, the evidence of notching in the context accepted by the district court “merely negates an element of the plaintiffs prima facie case ... it is not truly an affirmative defense and need not be pleaded despite rule 8(c).” Masuen v. E.L. Lien & Sons, Inc., 714 F.2d 55, 57 (8th Cir.1983) (quoting Sanden v. Mayo Clinic, 495 F.2d 221, 224 (8th Cir.1974)). In short, the court’s modifications to its ruling on the motion in limine appear to represent its best effort to accommodate the preclusive effect of Féd.R.Civ.P. 8(c) with Otis’s right to show that its actions were not the cause of Marino’s harm. An examination of the circumstances in" }, { "docid": "15056729", "title": "", "text": "in Fred Miller Co. v. Empire Fire & Marine Ins. Co., 503 F.2d 751 (8th Cir.1974). In that case, a general insurance agent brought an action against an insurance company to recover for an alleged interference with the agent’s use and control of expirations guaranteed him by the general agency agreement. We remanded for the district court to resolve whether the insurance company directly solicited subagents in violation of its agreement with the general agent. Id. at 758. We stated that while the insurance company could not solicit the sub-agents, the general agent was not protected against acts of the insured that could defeat his ownership and control of the expirations, for an insured may place his business with whomever he pleases. Id. at 754. D & S’s argument that Fred Miller is no longer good law, and its attempts to distinguish the case on the grounds that it applies only to tortious interference claims or distinguishable contract claims, are unpersuasive. The rationale of Fred Miller transcends tor-tious interference claims and encompasses the relationships of parties in the insurance industry in general. The same relationships are present in this action. D & S’s evidence did not establish that the American agency system described in Fred Miller has been replaced or changed to such an extent that we should not apply the analysis of that case to the present case. The district court correctly found that D & S did not submit sufficient evidence to create a genuine dispute about whether Liberty National approached Supermarket for the insurance renewal. Defendants submitted the affidavit of Lanny Riedel, a Supermarket employee, who attested that Supermarket was unhappy with the $75,000 fee it had originally paid D & S and believed there was no need for D & S’s involvement in negotiating the renewal. In response, Charles Sehaaff stated in his deposition that Liberty National approached Supermarket about renewing the insurance. He did not state any basis for that knowledge, however. Such evidence was insufficient to create a factual dispute. See JRT, Inc. v. TCBY Sys., Inc., 52 F.3d 734, 737 (8th Cir.1995). D" }, { "docid": "15056725", "title": "", "text": "WOLLMAN, Circuit Judge. Davidson & Schaaff, Inc. (D & S) appeals the district court’s grant of summary judgment to Liberty National Insurance Co. (Liberty National) and J. Gordon Gaines, Inc. (Gaines) on D & S’s claims in this diversity action alleging breach of contract, inducing breach of contract, fraudulent misrepresentation, civil conspiracy, and tortious interference with a business relationship. We affirm. D & S entered into a brokerage agreement with Gaines to sell insurance for Liberty National. Liberty National and Gaines are both wholly-owned subsidiaries of Liberty Management Services, Inc. D & S placed insurance for Supermarket Insurance Agency (Supermarket), a wholly-owned subsidiary of Associated Wholesale Grocers, Inc. (Associated Grocers), with Liberty National. Supermarket asked that D & S not include a commission in the quote from Liberty National. Instead, Supermarket agreed to pay D & S $75,000 for placing the insurance. D & S did not receive a commission from Liberty National. For purposes of its motion for summary judgment, Liberty National conceded that it terminated D & S as a broker and renewed the policies directly with Supermarket, leaving D & S without a commission for the renewals. Liberty National argued, however, that because it did not solicit the renewals but was approached by Supermarket, the direct renewals were lawful. D & S argues on appeal that the district court chose the wrong law to apply to the breach of contract, fraudulent misrepresentation, and civil conspiracy claims, improperly excluded D & S’s supplemental opposition to the motion for summary judgment, improperly allowed Liberty National to raise an affirmative defense in its motion for summary judgment, and erred in granting defendants summary judgment on the merits. A district court applies the choice of law rules of the state in which it sits. We review the district court’s application of the state’s choice-of-law rule de novo. Educational Employees Credit Union v. Mutual Guar. Corp., 50 F.3d 1432, 1437 (8th Cir.1995). Missouri courts apply the significant relationship test found in the Restatement (Second) of Conflicts of Law (1971). Birnstill v. Home Sav. of America, 907 F.2d 795, 797 (1990). Athough the" }, { "docid": "14729902", "title": "", "text": "Decl. at 9-29; PL’s Mem. in Supp. of Cross-Mot. at 16-18. These issues are not properly before the Court. Therefore, plaintiffs arguments on these subjects do not constitute “any remaining reason why this Court should hot enter judgment in favor of the defendants.” See Minute Order (Oct. 15, 2012). First, the adequacy of defendants’ searches for the records at issue in Counts II and III is not before the Court because plaintiff did not challenge the adequacy of those searches in his complaint or at any time before the Court’s August 2012 decision. See Hooker, 887 F.Supp.2d at 50 n. 9, citing Compl. ¶¶ 18-33 (“Counts II and III challenge only the withholdings and redactions of records under Exemption 5 and not the adequacy of CDC’s search for records.”). The Court has already granted summary judgment to defendants on Counts II and III as they were originally pled, and plaintiff has not moved to amend his complaint to include these new allegations. Quinn v. Dist. of Columbia, 740 F.Supp.2d 112, 130 (D.D.C. 2010) (citation omitted) (“It is well established that ‘plaintiff[s] may not, through summary judgment briefs, raise new claims’ where such claims were ‘not raise[d][ ] in [the] complaint’ and plaintiffs have ‘not file[d] an amended complaint.’ ”). Even if the Court were to construe plaintiffs pleadings as a motion to amend his complaint to challenge the adequacy of those searches, that motion would fail because he has not satisfied Rule 59(e)’s stringent standard for setting aside the prior judgment and re-opening the proceedings on Counts II and II. See Ciralsky v. CIA, 355 F.3d 661, 673 (D.C.Cir.2004), quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996) (per curiam) (“[0]nce a final judgment has been entered, a court cannot permit an amendment [of the complaint] unless the plaintiff ‘first satisfies] Rule 59(e)’s more stringent standard’ for setting aside that judgment.”). Second, the Court has already ruled that defendants conducted an adequate search with respect to the FOIA request referenced in Count IV, and plaintiffs affidavit is not the proper vehicle to ask the Court to reconsider that decision. Even" }, { "docid": "16478482", "title": "", "text": "v. Colafella, 885 F.2d 66, 71 (3d Cir.1989)). However, because “[a] district court has discretion in acting on Rule 56(f) motions,” this list of factors is not exhaustive. Id. at 1267. Instead, it “simply offer[s] a guide for the district court to follow in exercising its discretion under Rule 56(f),” id., and therefore provides the general framework for our inquiry as well. In addressing the first factor - an analysis of the information sought - we examine the substance of the Rule 56(f) affidavit. Id. at 1266. Here, Horvath concedes that all of the discovery described in Dr. Klionsky’s affidavit had previously been sought in the two motions to compel denied by the District Court. In this sense, the Rule 56(f) motion sought no new discovery, and essentially amounted to nothing more than a motion for reconsideration of the District Court’s denial of the two prior motions to compel. With respect to the second factor, we examine whether the requested information would have altered the outcome of the District Court’s summary judgment determination. Contractors Ass’n of Eastern Pa., 945 F.2d at 1266. As discussed in more detail below, neither applicable case law nor the text of ERISA required disclosure of the scope of Keystone’s physician incentive structure under the facts presented in this case. Accordingly, none of the information described in the affidavits would have precluded the District Court’s entry of summary judgment in favor of Keystone. Finally, we assess “why the party seeking more time has not previously obtained the information.” Id. at 1267. Here, Horvath’s initial motion to compel was denied without prejudice, and she was given the opportunity to submit more narrowly tailored document requests. She failed to do so. The District Court therefore acted properly in denying her second motion to compel. For the above reasons, the District Court did not abuse its discretion.in electing not to grant Horvath’s Rule 56(f) motion. D. The Nature of Horvath’s Claim In asserting that the District Court erred in granting summary judgment to Keystone, Horvath’s counsel struggled mightily, both in their briefs and at oral argument, to persuade us" }, { "docid": "15056735", "title": "", "text": "their answer. In addition, the argument was not an affirmative defense, but simply negated an element of D & S’s prima facie case. See Masuen v. E.L. Lien & Sons, Inc., 714 F.2d 55, 57 (8th Cir.1983) (per curiam). D & S filed a separate notice of appeal from the district court’s denial of its motion to reconsider under Federal Rule of Civil Procedure 59(e). We conclude that the district court did not abuse its discretion in denying the motion. See Concordia College Corp. v. W.R. Grace & Co., 999 F.2d 326, 330 (8th Cir.1993) (standard of review), cert. denied, — U.S. -, 114 S.Ct. 926, 127 L.Ed.2d 218 (1994). D & S did not provide a valid reason for failing to submit the Hoffman affidavit and the unsigned affidavit of Robert Kelly, a Liberty National employee, with its opposition to. summary judgment. See id. (motion cannot be used to raise arguments that could have been raised prior to judgment). One final comment. At oral argument, we rebuked D & S’s counsel for the several unwarranted, unprofessional aspersions in D & S’s briefs directed at the district court’s treatment of the case. We accepted counsel’s apologies for those comments, and so we will not detail them here, other than to say that they were totally uncalled for and far beyond the pale of responsible advocacy. The judgment is affirmed. . The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri. . The brokerage agreement states that “Gaines recognizes the independent ownership by producer of the insurance business subject to this agreement,” but does not specify commissions to be paid." }, { "docid": "1903076", "title": "", "text": "MEMORANDUM OPINION WALTON, District Judge. The plaintiff has filed a motion seeking reconsideration of this Court’s rulings as set forth in its Memorandum Opinion dated April 1, 2003, in which it granted the defendant’s motion for summary judgment. Plaintiff seeks reconsideration of the Court’s ruling pursuant to Federal Rule of Civil Procedure 59(e), which states that “a party may motion to alter or amend a judgment no later than ten days after entry of that judgment.” A district court properly exercises its discretion under Rule 59(e) when there “is an ‘intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996) (citations omitted). Ordinarily, Rule 59(e) motions are not granted by the district court when they are used by a losing party to attempt to re-argue theories or identify new arguments that could have been previously raised. Kattan v. District of Columbia, 995 F.2d 274, 276 (D.C.Cir.1993) (citations omitted). Plaintiff primarily makes two arguments in his motion for reconsideration, which were both addressed by the Court in its April 1, 2003 Memorandum Opinion, and the Court could therefore deny plaintiffs motion on that basis alone. See Rann v. Chao, 209 F.Supp.2d 75, 83 (D.D.C.2002) (denying plaintiffs Rule 59(e) motion where “the plaintiff merely raise[d] arguments that the court ha[d] already considered and rejected in its ... Memorandum Opinion.... The plaintiffs disagreement with the court’s analysis and conclusions does not satisfy any of Rule 59(e)’s criteria for altering or amending the court’s judgment.”) (citation omitted); Pearson v. Thompson, 141 F.Supp.2d 105,107 (D.D.C.2001) (“A motion for reconsideration will not be granted if a party is simply attempting to renew factual or legal arguments that it asserted in its original briefs and that were already rejected by the Court.”). However, plaintiff argues that he is Petitioner’s Reply to Defendant’s Opposition to Plaintiffs Motion for Reconsideration of Courts [sic] Order (“Pl.’s Reply”) at 1. Further, plaintiff argues that the “cases cited in the Court’s ... Memorandum Opinion convey that a clear error of law would" }, { "docid": "15056734", "title": "", "text": "D & S’s opposition. D & S argued that the defendants had raised new arguments in the reply. The district court noted that D & S had already been allowed to file opposition twice the page limit provided by the local rule. We find no new arguments in defendants’ reply, nor any other reason why D & S did not submit the additional evidence with its initial response to the motion for summary judgment. The affidavit of Rebecca Hoffman, a former Gaines employee, proffered by D & S, consisted of speculation and hearsay testimony that would not have been admissible to prove the allegations at trial. See JRT, Inc., 52 F.3d at 737 (successful summary judgment defense requires more than inadmissible, hearsay-based affidavit). We also find unpersuasive D & S’s contention that Liberty National was barred from raising in its motion for summary judgment the argument that Supermarket had first contacted Liberty National concerning renewals. D & S’s complaint stated that defendants had contacted Associated Grocers for the renewals, an allegation the defendants denied in their answer. In addition, the argument was not an affirmative defense, but simply negated an element of D & S’s prima facie case. See Masuen v. E.L. Lien & Sons, Inc., 714 F.2d 55, 57 (8th Cir.1983) (per curiam). D & S filed a separate notice of appeal from the district court’s denial of its motion to reconsider under Federal Rule of Civil Procedure 59(e). We conclude that the district court did not abuse its discretion in denying the motion. See Concordia College Corp. v. W.R. Grace & Co., 999 F.2d 326, 330 (8th Cir.1993) (standard of review), cert. denied, — U.S. -, 114 S.Ct. 926, 127 L.Ed.2d 218 (1994). D & S did not provide a valid reason for failing to submit the Hoffman affidavit and the unsigned affidavit of Robert Kelly, a Liberty National employee, with its opposition to. summary judgment. See id. (motion cannot be used to raise arguments that could have been raised prior to judgment). One final comment. At oral argument, we rebuked D & S’s counsel for the several" }, { "docid": "10058604", "title": "", "text": "for any purpose other than the refutation of the plaintiffs prima facie case. It refused to give an instruction to the jury regarding contributory negligence, thus guaranteeing that the evidence would not be used other than to disprove the plaintiffs case. See Radio Corp., 424 F.2d at 17. Thus, to the extent that Marino’s notching of the overshot is relevant to the question of causation, the evidence of notching in the context accepted by the district court “merely negates an element of the plaintiffs prima facie case ... it is not truly an affirmative defense and need not be pleaded despite rule 8(c).” Masuen v. E.L. Lien & Sons, Inc., 714 F.2d 55, 57 (8th Cir.1983) (quoting Sanden v. Mayo Clinic, 495 F.2d 221, 224 (8th Cir.1974)). In short, the court’s modifications to its ruling on the motion in limine appear to represent its best effort to accommodate the preclusive effect of Féd.R.Civ.P. 8(c) with Otis’s right to show that its actions were not the cause of Marino’s harm. An examination of the circumstances in this case discloses that there was no abuse of discretion in that accommodation. Even if the evidence had been considered for purposes of establishing contributory negligence, the court did not abuse its discretion in admitting such testimony. The purpose behind rule 8(c), that of putting “plaintiff on notice well in advance of trial that defendant intends to present a defense in the nature of an avoidance,” State Distribs., Inc., v. Glenmore Distilleries Co., 738 F.2d 405, 410 (10th Cir.1984) (citing Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 458 (10th Cir.1982)), has been served in this case. Marino was advised at least three months prior to trial by Otis that it intended to raise the notching issue as an affirmative defense. See Deposition of Charles Roper, R.Vol. Ill at 594. And, the notching issue was repeatedly raised in the depositions before trial in some detail. See Deposition of William Hicks, Id. at 511-16; Deposition of John Harcourt, Id. at 521-28; Deposition of W.E. Goad, Id. at 671-73; Deposition of John L. Marino, id. at 687; Deposition" }, { "docid": "15056732", "title": "", "text": "applicable to the insurance industry. The tortious interference claim requires intentional misconduct, see Noller v. GMC Truck & Coach Din, 13 Kan.App.2d 13, 760 P.2d 688, 698-99 (1988), rev’d in part on other grounds, 244 Kan. 612, 772 P.2d 271 (1989), and the conspiracy claim requires an unlawful act, see State ex rel. Mays v. Ridenhour, 248 Kan. 919, 811 P.2d 1220, 1226 (1991), on Liberty National’s part. Because Supermarket approached Liberty National, defendants did nothing wrong. In any event, as to the conspiracy claim, we are persuaded by Liberty National’s argument that two subsidiaries of the same parent cannot conspire. See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771, 104 S.Ct. 2731, 2741-42, 81 L.Ed.2d 628 (1984) (parents and subsidiaries cannot conspire); City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 277 (8th Cir.1988) (sister corporations cannot conspire). Finally, we find that the district court correctly granted summary judgment on D & S’s claim that Liberty National made fraudulent misrepresentations at the time of contracting and accepting the Supermarket business. To prevail on a fraudulent misrepresentation claim, D & S would have to show that Liberty National knowingly made false representations to it. See Unified Sch. Dist. No. 500 v. United States Gypsum, Co., 788 F.Supp. 1173, 1176 (D.Kan.1992) (elements of claim). The district court correctly found that the evidence was insufficient for a jury to make such a finding by clear and convincing evidence, as fraud is never presumed. See Waxse v. Reserve Life Ins. Co., 248 Kan. 582, 809 P.2d 533, 536 (1991). D & S presented no direct evidence that Liberty National knowingly made false representations to it. We find that the district court did not abuse its discretion in denying D & S leave to file supplemental opposition to defendants’ motion for summary judgment. See Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse-Wisconsin, Inc., 991 F.2d 1249, 1257 (7th Cir.1993) (standard of review). D & S attempted to file twenty-eight pages of supplemental suggestions in opposition and an additional affidavit after defendants had already replied to" } ]

[ { "docid": "22149283", "title": "", "text": "a prerequisite under the terms of Burlington’s policy was not decided. The district court further held that ERISA preempted the state law causes of action. It therefore permanently enjoined the proceedings before the State Industrial Board and enforcement of its Orders to Comply with the Commissioner’s decision pursuant to § 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3). Judge Brieant denied the Commissioner’s application to stay the federal action and, on his own motion, certified his decision on preemption for immediate review by this Court pursuant to Fed.R. Civ.P. 54(b). Plaintiffs and the State of New York were joined on the appeal by ten states and the District of Columbia that filed briefs as amici curiae. This appeal presents three principal questions: first, whether the district court was correct in holding that an unfunded severance pay policy is an ERISA plan under either § 1002(1)(A) or § 1002(1)(B); second, if Burlington’s severance policy is an ERI-SA plan, whether the plaintiffs’ state law claims and § 198-c (insofar as it applies to severance plans) are preempted; finally, whether Burlington should be estopped from raising a defense of preemption because it allegedly never sought to comply with ERISA’s protective reporting and disclosure requirements. II Does An Unfunded Severance Pay Policy Constitute A Welfare Benefit Plan Within The Meaning of ERISA? The first issue is whether Burlington’s severance pay policy constitutes an employee welfare benefit plan under § 3 of ERI-SA. 29 U.S.C. § 1002(1). Amici and plaintiffs argue that a promise or agreement to pay severance benefits, without more, does not constitute a welfare benefit plan within the meaning of ERISA. If the severance pay plan is not one governed by ERISA then, of course, the common law and statutory claims are not preempted. Section 3(1) of ERISA defines an “employee welfare benefit plan” or “welfare plan” to include: [A]ny plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing" } ]

[ { "docid": "14293405", "title": "", "text": "to the Federal courts”, preempting state causes of action to provide federal remedies as well as uniform administrative practices. 29 U.S.C. § 1001(b); Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). ERISA does not govern every employee benefit, nor every health insurance policy. First, ERISA applies only to benefit plans, not all employee benefits. See Fort Halifax, supra 482 U.S. at 7-8, 19, 107 S.Ct. at 2215, 2221. “The argument that ERISA preempts state laws relating to certain employee benefits, rather than to employee benefit plans, is refuted by the express language of the statute, the purposes of the preemption provision, and the regulatory focus of ERISA as a whole.” Id. at 19, 107 S.Ct. at 2221. Second, ERISA does not reach purely individual contracts or purchases of insurance. See e.g., Taggart Corp. v. Life & Health Benefits Admin., Inc., 617 F.2d 1208, 1211 (5th Cir.1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225 (1981) (“ERISA “plans” are broader in concept than pure insurance transactions”). ERISA covers plans established or maintained by an employer or employee organization, not by an individual. Donovan, supra at 1373; see also Jervis v. Elerding, 504 F.Supp. 606, 608 (C.D.Cal.1980) (contract between employer and individual employee for post-retirement or post-termination in-kind compensation was an employment contract and not an ERISA “plan, fund, or program”). ERISA governs employee welfare benefit plans established or maintained by an employer or an employee organization engaged in commerce or in an industry or activity affecting commerce. 29 U.S.C. § 1003(a); see also Memorial Hosp. System v. Northbrook Life Ins. Co., 904 F.2d 236, 240 (5th Cir.1990). The statutory definition of an “employee welfare benefit plan” can be divided into five parts. There must be “(1) a “plan, fund, or program” (2) established or maintained (3) by an employer or by an employee organization, or by both, (4) for the purpose of providing medical, surgical, hospital care, sickness, accident, disability, death, unemployment or" }, { "docid": "19772080", "title": "", "text": "matter juris diction. International Primate Prot. League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 89, 111 S.Ct. 1700, 1710, 114 L.Ed.2d 134 (1991), superseded on other grounds, Federal Courts Improvement Act of 1996, Pub.L. No. 104-317, 110 Stat. 3847, 3850 (internal quotations omitted). Because both dismissal and remand have been raised, the court must first determine whether it has subject matter jurisdiction. A. Plaintiffs Motion to Remand Defendant premises subject matter jurisdiction on federal question and diversity grounds. The court must decide which, if either exists, and will begin by addressing federal question jurisdiction. Defendant alleges in its notice of removal that federal question jurisdiction exists because the SAP is an employee welfare benefit plan as defined by ERISA. As such, Defendant contends Plaintiffs Wage and Hour Act claim is preempted, thereby creating federal question jurisdiction. Plaintiff argues in her motion for remand that the SAP does not fall within ERISA, resulting in no preemption and no federal question jurisdiction. ERISA applies to any employee welfare benefit plan if it is established or maintained by any employer engaged in or affecting commerce. 29 U.S.C. § 1003. An “employee welfare benefit plan” is a plan, fund, or program that provides “participants or their beneficiaries, through the purchase of insurance or otherwise” with, inter alia, “benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits.” Id. § 1002(1). However, because this statutory definition provides little assistance in determining whether such a plan exists, case law controls the issue. See Belanger v. Wyman-Gordon Co., 71 F.3d 451, 454 (1st Cir.1995) (“The text of ERISA itself affords scant guidance as to what constitutes a covered ‘plan.’ ”). The Supreme Court has given its guidance on how to determine whether severance benefits, like those at issue here, are governed by ERISA. In Fort Halifax Packing Co. v. Coyne, the Court stated that whether the payment of benefits constitutes an ERISA plan depends on whether payment of the benefits at issue “requires an ongoing administrative program to meet the employer’s obligation.” 482 U.S. 1, 11, 107 S.Ct. 2211, 2217, 96" }, { "docid": "23692895", "title": "", "text": "plaintiffs’ state law breach of contract claims are preempted. ERISA preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan....” ERISA § 514(a); 29 U.S.C. § 1144(a). The definition of “employee benefit plan” can include severance benefits. 29 U.S.C. § 1002(1); 29 C.F.R. § 2510.3-l(a)(3); Delaye v. Agripac, Inc., 39 F.3d 235 (9th Cir.1994) (severance pay may constitute plan within the meaning of ERISA), cert. denied, — U.S. -, 115 S.Ct. 1402, 131 L.Ed.2d 289 (1995); Bogue v. Ampex Corp., 976 F.2d 1319 (9th Cir.1992) (severance pay considered “employee welfare benefit plan” under ERISA), cert. denied, 507 U.S. 1031, 113 S.Ct. 1847, 123 L.Ed.2d 471 (1993); Scott v. Gulf Oil Corp., 754 F.2d 1499 (9th Cir.1985); Blau v. Del Monte Corp., 748 F.2d 1348, 1352 (9th Cir.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985). “[A] relatively simple test has emerged to determine whether a plan is covered by ERISA: does the benefit package implicate an ongoing administrative scheme?” Delaye, 39 F.3d at 237 (citing Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 12, 107 S.Ct. 2211, 2217-18, 96 L.Ed.2d 1 (1987)) (emphasis added). Following our holding in Delaye, the district court concluded that the Stay On Letter does not constitute an “employee benefit plan” because it does not require an ongoing administrative scheme. PACE contends that the district court erred because the Stay On Letter created a plan similar to that in Bogue where we found the plan did constitute an employee benefit plan. In Bogue, we concluded that a special compensation program for 10 key executives was an employee benefit plan under ERISA because the plan involved more than “[t]he theoretical possibility of a one-time obligation in the future.” 976 F.2d at 1322 (quoting Fort Halifax, 482 U.S. at 12, 107 S.Ct. at 2217-18). The program provided for severance benefits if the employee was terminated and neither the employer, nor the new owner of the business, offered “substantially equivalent” employment. Id. at 1321. In that situation, the employer “was obligated to apply enough ongoing," }, { "docid": "8462355", "title": "", "text": "1003(a) makes ERISA applicable, with exceptions not here relevant, to “any employee benefit plan ... established or maintained — (1) by any 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.” Fleet does not question that it is subject to ERISA. If an employer’s program is an employee welfare benefit plan, ERISA preempts state laws that “provide an alternative cause of action to employees to collect benefits protected by ERISA.” Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 146 (2d Cir.), cert. denied, 493 U.S. 811, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989). The question before us, therefore, is whether Fleet’s undertaking to give its employees 60-days additional pay upon termination of their employment following the consolidation of its functions constituted an “employee welfare benefit plan” under ERISA. B. The Supreme Court dealt with a closely related question in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987). That case involved a Maine statute that required certain employers, on the closing of a plant, to give terminated employees who had worked in the plant three or more years a severance payment of one week’s pay for each year of employment. Id. at 5, 107 S.Ct. at 2214. The Court held that ERISA did not preempt the statute “because the statute neither establishes, nor requires an employer to maintain, an employee welfare benefit ‘plan’ under the federal statute.” Id. at 6, 107 S.Ct. at 2215 (footnote omitted). The Court ruled that preempting the Maine statute “would not further the purpose of ERISA pre-emption,” id. at 8, 107 S.Ct. at 2216, and that “the Maine statute in no way raises the types of concerns that prompted pre-emption.” Id. at 11, 107 S.Ct. at 2217. It stated: Congress intended pre-emption to afford employers the advantages of a uniform set of administrative procedures governed by a single set of regulations. This concern only arises, however, with respect to" }, { "docid": "23067386", "title": "", "text": "plan.” 29 U.S.C. § 1132(a)(1)(B) & (e)(1). LIJ contends that the Severance Plan does not constitute an employee welfare benefit plan under ERISA and that, therefore, the district court lacked subject matter jurisdiction over Schonholz’s claims. The term “employee welfare benefit plan” is defined by ERISA to include any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer ... to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries ... (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services. 29 U.S.C/ § 1002(1); see 29 U.S.C. § 1002(3). Because the district court held that the Severance Plan was within the definition of “employee welfare benefit plan” and thus determined jurisdiction as a matter of law, we review its finding de novo. Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1016-17 (2d Cir.1991). The term “employee welfare benefit plan” has been held to apply to most, but not all, employer undertakings or obligations to pay severance benefits. Yet, both the Supreme Court and this court have emphasized that ERISA applies only where such an undertaking or obligation requires the creation of an ongoing administrative program. For instance, in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 12, 107 S.Ct. 2211, 2218, 96 L.Ed.2d 1 (1987), the Supreme Court, faced with whether ERISA preempted a Maine statute that required employers to make a one-time severance payment to employees upon a plant closing, held that the Maine statute did not create an employee welfare -benefit plan and thus was not preempted. The Court stated: “The theoretical possibility of a one-time obligation in the future simply creates no need for an ongoing administrative program for processing claims and paying benefits.” Id. Similarly, in James v. Fleet/Norstar Financial Group, Inc., 992 F.2d 463 (2d Cir.1993), we addressed whether an employer’s undertaking to give" }, { "docid": "7304120", "title": "", "text": "enacted to protect the participants and beneficiaries of employee benefit plans. 29 U.S.C. § 1001(b). Section 1132(a)(1)(B) states that a civil action may be brought by a plan beneficiary “to recover benefits due to him under the terms of the plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” Section 1132(e) gives federal district courts jurisdiction over such actions. The Supreme Court has held that ERISA preempts state common law claims involving the processing of employee benefits. See Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 56-57, 107 S.Ct. 1549, 1557-58, 95 L.Ed.2d 39 (1987). ERISA applies to any employee benefit plan if it is established or maintained by an employer or an employee organization engaged in commerce or in any industry or activity affecting commerce. 29 U.S.C. § 1003(a); Memorial Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 240 (5th Cir.1990). ERISA regulates two distinct types of benefit programs that may be offered to employees: pension plans and welfare plans. Id. Section 3(1) of ERISA, the definitional section, includes among “employee welfare benefit plans” any plan established by an employer that provides benefits in the event of unemployment. See 29 U.S.C. § 1002(1). Although the Fifth Circuit has not spoken directly to this issue, many federal courts have specifically recognized that an employer’s provisions for severance pay are “employee welfare benefit plans” under ERISA. See, e.g., Wickman v. Northwestern Nat. Ins. Co., 908 F.2d 1077, 1082 (1st Cir.1990); Wallace v. Firestone Tire & Rubber Co., 882 F.2d 1327, 1329 (8th Cir.1989); Pane v. RCA Corp., 868 F.2d 631, 635 (3rd Cir.1989). Since El Paso’s severance pay plan has as its purpose the providing of financial assistance to employees whose jobs are abolished, it is clearly an employee welfare benefit plan within the meaning of ERISA. See Holland v. Burlington Indus. Inc., 772 F.2d 1140, 1146 (4th Cir.1985), aff'd sub nom., Brooks v. Burlington Indus. Inc., 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 559 (1986). Guzman’s claim for breach of" }, { "docid": "4624019", "title": "", "text": "separately and as part of the overall program. It cites precedents holding that severance pay falls within ERISA, such as Gilbert v. Burlington Indus., Inc., 765 F.2d 320 (2d Cir.1985), aff'd mem., 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 558 (1986): Although severance pay is often a reward for past service, it also serves the same purpose as unemployment benefits. When ties that bind an employee to his or her company are severed by the employer, unemployment for the employee — whether fleeting or permanent — is an inexorable consequence. Thus, in our view severance pay is an unemployment benefit and an unfunded severance pay policy constitutes an “employee welfare benefit plan” under § 1002(1)(A). We also conclude that an unfunded severance pay policy is an “employee welfare benefit plan” under § 1002(l)(b). Id. at 325 (citations omitted). See also Massachusetts v. Morash, 490 U.S. 107, 116, 109 S.Ct. 1668, 1673, 104 L.Ed.2d 98 (1989) (severance benefit plans are employee welfare benefit plans under ERISA); Reichelt v. Emhart Corp., 921 F.2d 425, 430 (2d Cir.1990) (“An unfunded severance plan is an ‘employee welfare benefit plan’ under § 1002(1).”), cert. denied, — U.S. -, 111 S.Ct. 2854, 115 L.Ed.2d 1022 (1991). Barbagallo argues that the severance pay provisions are separate from the overall Program and not subject to ERISA. Barbagallo’s argument finds support in precedents that found against preemption where certain benefits were separable from others that fell within ERISA. Thus, the Supreme Court in Massachusetts v. Morash, 490 U.S. 107, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989), decided that accrued vacation pay was not governed by ERISA. And in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), the Court found that a state law mandating one-time severance payments in the event of a plant closing was not a “plan” and therefore- not preempted by ERISA. Gilbert might appear to exist in tension with Fort Halifax, because one decision finds a severance pay program to be covered by ERISA and the other finds a severance pay program not covered by ERISA. Factual" }, { "docid": "23523819", "title": "", "text": "(2d Cir.1985), aff'd mem., 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 558 (1986); accord Holland v. Burlington Industries, Inc., 772 F.2d 1140, 1145 (4th Cir.1985), aff'd mem., 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 559 (1986); Adams v. Avondale Industries, Inc., 905 F.2d 943, 947 (6th Cir.), cert. denied, — U.S. —, 111 S.Ct. 517, 112 L.Ed.2d 529 (1990); Scott v. Gulf Oil Corp. 754 F.2d 1499, 1503 (9th Cir.1985); see also Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 17-18, 107 S.Ct. 2211, 2220-21, 96 L.Ed.2d 1 (1987); Schwartz v. Newsweek, Inc., 827 F.2d 879, 881 n. 2 (2d Cir.1987) (“ Fort Halifax ... adopted [Gilbert v. Burlington Industries’] holding ... that an employer severance pay plan ..., which pays benefits on an ongoing basis to employees severed under certain circumstances, is an ‘employee welfare benefit plan’ under ERISA.”). Since severance benefits are welfare benefits and an employee’s interest in a welfare benefit plan is not vested, the employer has no continuing obligation to provide severance benefits; under ERISA, the employer has the right at any time to amend or terminate a severance pay plan. See, e.g., Adams v. Avondale Industries, Inc., 905 F.2d at 947 (employer may freely amend ERISA severance pay plan); Young v. Standard Oil (Indiana), 849 F.2d at 1045 (employer is “free to alter or eliminate severance benefits ... without consideration of the employees’ interests”); Sutton v. Weirton Steel Division of National Steel Corp., 724 F.2d 406, 410 (4th Cir.1983) (ERISA does not prohibit modification of severance plans because Congress believed the vesting of such benefits would be too costly), cert. denied, 467 U.S. 1205, 104 S.Ct. 2387, 81 L.Ed.2d 345 (1984); see also Phillips v. Amoco Oil Co., 799 F.2d 1464, 1471 (11th Cir.1986) (“ERISA simply does not prohibit a company from eliminating previously offered benefits that are neither vested nor accrued”), cert. denied, 481 U.S. 1016, 107 S.Ct. 1893, 95 L.Ed.2d 500 (1987). Since an employer has the right under ERISA to amend or eliminate a severance benefit plan at any time, a fortiori it may do so in the" }, { "docid": "7248077", "title": "", "text": "courts apply “general rules” of contract law as part of the federal common law. See, e.g., Hunter v. Caliber System, Inc., 220 F.3d 702, 712 (6th Cir.2000); Perez v. Aetna Life Ins. Co., 150 F.3d 550, 556 (6th Cir.1998). The federal common law may draw upon state law principles, but state law is not controlling authority. Interpreting a non-ERISA contract claim requires federal courts to look only to state law principles, and has nothing to do with federal common law. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Because the fundamental legal framework differs for ERISA and non-ERISA plans, the question of whether the ANSI severance pay benefit is part of an ERISA plan should be decided. ERISA defines an “employee welfare benefit plan” as “any plan ... established or maintained by an employer ... for the purpose of providing for its participants ... (A) benefits in the event of ... unemployment ... or (B) any benefit described in section 186(c) of this title.” 29 U.S.C. § 1002(1). Severance plans are included in the definition of 29 U.S.C. § 1002(1)(B). Shahid v. Ford Motor Co., 76 F.3d 1404, 1409 (6th Cir.1996). Section 302(c) of the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 186(c), refers to severance benefits, and § 1002(1)(B) incorporates that reference into ERISA’s definition of “employee welfare benefit plan.” Additionally, the Supreme Court has specifically noted that “plans to pay employees severance benefits, which are payable only upon termination of employment, are employee welfare benefit plans.” Massachusetts v. Morash, 490 U.S. 107, 116, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989). Nonetheless, this circuit has held that not all severance pay plans are ERISA plans. We have looked to the nature of the plan to distinguish ERISA from non-ERISA plans. Swinney v. General Motors Corp., 46 F.3d 512, 517 (6th Cir.1995) (“The hallmark of an ERISA benefit plan is that it requires ‘an ongoing administrative program to meet the employer’s obligation.’ ”) (quoting Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 11-12, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987)). The degree" }, { "docid": "5804573", "title": "", "text": "comprehensive remedial statute designed to cure widespread defects in the private pension system and to protect the interests of employees and their beneficiaries in employment benefit plans. See H.R.Rep. No. 533, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 4639, 4639-43; Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983). To this end, ERISA subjects employee fringe benefit plans to federal regulation. ERISA sets forth applicable uniform standards which employee benefit plans must meet, including rules regarding disclosure requirements. 29 U.S.C. §§ 1021-1031. The statute also defines a specific, uniform, required standard of conduct for fiduciaries, delineating fiduciary responsibility. Id. at §§ 1101-1114. However, ERISA does not mandate that employers provide any particular benefits or minimum thereof. Shaw, supra, 463 U.S. at 91, 103 S.Ct. at 2896. ERISA applies to any “employee benefit plan” if it is established “by any employer engaged in commerce or in any industry or activity affecting commerce.” 29 U.S.C. § 1003(a)(1). “Employee benefit plan” encompasses “welfare plan”, id. at 1002(3), and “welfare plan” includes any program which provides benefits for contingencies such as illness, accident, disability, death, or unemployment, id. at § 1002(1). Severance pay plans are explicitly included within the definition of “welfare plan”. 29 C.F.R. § 2510.3-l(a)(3) (1986) (“the effect of section 3(1)(B) of the Act is to include within the definition of ‘welfare plan’ those plans which provide holiday and severance benefits, and benefits which are similar (for example, benefits which are in substance severance benefits, although not so characterized).”) It is clear on the record before the Court that the severance pay plan here at issue is an employee welfare benefit plan to which ERISA applies. See Gilbert v. Burlington Indus., Inc., 765 F.2d 320, 324-26 (2d Cir.1985), aff'd mem., — U.S. -, 106 S.Ct 3267, 91 L.Ed.2d 558 (1986); Holland v. Burlington Indus., Inc., 772 F.2d 1140, 1144-46 (4th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 3271-72, 91 L.Ed.2d 562 (1986); Jung v. FMC Corp., 755 F.2d 708, 710 n. 2 (9th Cir.1985); Donovan v. Dillingham, 688" }, { "docid": "7208119", "title": "", "text": "granted,” based on years of service. For those who qualify, the payment is to be made in a lump sum upon termination. The plaintiffs argue, and the District Court concluded, that the BMT severance plan is an employee welfare benefit plan governed by ERISA. After de novo review, we agree. An “employee welfare benefit plan” is “any plan, fund, or program ... to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants,” inter alia, severance benefits. 29 U.S.C. § 1002(1)(B) (1994); see also Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 7 n. 5, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987) (explaining how severance benefits come within the definition of an employee welfare benefit plan). But not every policy that provides for the payment of severance benefits is necessarily an ERISA plan. As the Supreme Court has noted, ERISA was intended to provide for the federal regulation of plans, not merely benefits. See Fort Halifax, 482 U.S. at 11, 107 S.Ct. 2211 (discussing ERISA preemption of state law). ERISA will be implicated, then, only if the benefits involved are administered according to a plan of some sort. In other words, ERISA regulates only those “benefits whose provision by nature requires an ongoing administrative program to meet the employer’s obligation.” Id. The parties disagree as to whether Emmenegger and Ritzie have made an adequate showing of an “ongoing administrative program” to implicate ERISA and thus to invoke the jurisdiction of the federal courts on their claims for severance benefits. Fort Halifax is the seminal Supreme Court case on whether a severance plan is an ERISA-governed welfare benefit plan. The “plan” at issue in that case was a state statute that required employers to make severance-type payments to employees who lost their jobs as the result of a company’s shutdown of a facility. A company would make payment — if at all — only once, on the occasion of a shutdown. The Court held that the state statute did not “relate to” an employee benefit plan because there was" }, { "docid": "22923596", "title": "", "text": "complied with their ERISA obligations to inform Mr. Howard of his conversion rights under the Plan, the district court granted summary judgment in their favor. This appeal followed. DISCUSSION A. Preemption This appeal raises the frequently litigated issue of the scope of federal preemption under ERISA, the comprehensive federal statutory scheme “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). While the statute does not mandate particular benefits, it governs plan operations, provides rules of fiduciary responsibility and sets forth disclosure requirements to further ERISA’s policy of protecting the interests of plan participants in the benefits that employers do elect to provide. Id. at 90-91, 103 S.Ct. at 2896-97; 29 U.S.C. §§ 1001, 1022, 1024(b) (1982 & Supp.V 1987). ERISA also contains a preemption provision. Section 514(a) provides that the statute “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by the statute. 29 U.S.C. § 1144(a) (1982). However, this broad preemption provision is not without qualification and, pertinent to this case, excepts from preemption laws that “regulate insurance.” 29 U.S.C. § 1144(b)(2)(A) (1982). The district court concluded that New York Insurance Law § 4216(d) is covered by the preemption clause and is not preserved by the savings clause as a law that regulates insurance. For the reasons set forth below, we agree. ERISA applies to employee benefit plans, not employee benefits. Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 7, 107 S.Ct. 2211, 2215, 96 L.Ed.2d 1 (1987). ERISA defines an employee welfare benefit plan, in pertinent part, as “any plan ... established or maintained by an employer ... for the purpose of providing ... participants or their beneficiaries, through the purchase of insurance ... benefits in the event of ... death.” 29 U.S.C. § 1002(1)(A) (1982). In Fort Halifax, the Supreme Court held that ERISA does not preempt a state statute requiring employ ers to make a one-time severance payment to employees" }, { "docid": "1687368", "title": "", "text": "... 29 U.S.C. § 1002(1)(A). It is well established that a severance pay plan such as that established by Defendant is an employee welfare benefit plan within the meaning of ERISA. See Massachusetts v. Morash, 490 U.S. 107, 115, 109 S.Ct. 1668, 1673, 104 L.Ed.2d 98, 109 (1989); Holland v. Burlington Industries, Inc., 772 F.2d 1140 (4th Cir.1985), aff'd sub nom. Brooks v. Burlington Industries, Inc., 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 559 (1986); Gilbert v. Burlington Industries, Inc., 765 F.2d 320 (2d Cir.1985), aff'd sub nom. Roberts v. Burlington Industries, Inc., 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 558 (1986). If Plaintiffs’ state law claims “relate to” that employee welfare plan, they are explicitly preempted by ERISA. The phrase “relate to” in 29 U.S.C. § 1144(a) is “given its broad common-sense meaning, such that a state law ‘relates to’ a benefit plan ‘in the normal sense of the phrase, if it has a connection with or reference to such a plan.’ ” Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 47, 107 S.Ct. 1549, 1553, 95 L.Ed.2d 39 (1987) (citations omitted). Applying this expansive concept of relatedness, the Court concludes that Plaintiffs’ state law claims for breach of contract and promissory estoppel are “related to” Defendant’s employee welfare benefit plan, and therefore those state law claims are preempted by ERISA. Both claims depend entirely on the existence, operation and alleged breach of the promises embodied in the severance pay plan. The Court, therefore, must dismiss those two claims because they are explicitly preempted by ERISA. § 1144(a). See 29 U.S.C. Plaintiffs argue, relying on Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), that the Maine wage claim statute is not preempted by ERISA. The Court finds it unnecessary to address this argument because it concludes that Plaintiff has failed to state a claim under 26 M.R.S.A. § 626-A. Plaintiffs’ complaint alleges that payments due under Defendant’s severance pay plan are “wages” within the meaning of 26 M.R.S.A. § 626-A. The Court has found no Maine precedent which" }, { "docid": "1687371", "title": "", "text": "and most important, Plaintiffs’ construction of the statute conflicts with the statute’s plain language. The term “unpaid wages,” as ordinarily understood, refers to earnings for completed services. The phrase does not encompass severance pay benefits, which become due only upon and by reason of an employee’s termination. The Court, therefore, concludes that Plaintiffs’ complaint fails to state a claim under 26 M.R. S.A. § 626-A and thus must be dismissed. Even if the Court were to adopt Plaintiffs’ construction of 26 M.R.S.A. §§ 626 and 626-A, the Maine statutory wage claim, like Plaintiffs’ common law causes of action, would be preempted by ERISA. Assuming that the statute provided Plaintiffs with a remedy for unpaid severance pay benefits, their claim would “relate to” an employee welfare benefit plan, and the preemption provision of ERISA, 29 U.S.C. § 1144, would bar the claim. Plaintiffs’ reliance on Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), is misplaced. The employer in Fort Halifax had not established an employee welfare benefit plan regarding severance pay. Further, the Supreme Court held that the Maine severance pay statute, 26 M.R.S.A. § 625-B, did not establish, nor did it require an employer to maintain, such a plan. Because there was no ERISA employee benefit plan, ERISA did not preempt the Maine statute. 482 U.S. at 6, 107 S.Ct. at 2214. Here, of course, Defendant’s severance pay plan qualifies as an employee welfare benefit plan within the meaning of ERISA, and thus the Fort Halifax decision is inappo-site. Finally, Plaintiff argues that Massachusetts v. Morash, 109 S.Ct. 1668, 104 L.Ed.2d 98, teaches that the Maine wage statute is not preempted by ERISA. However, the issue before the Morash Court was whether an employer’s promise to pay for unused vacation time was an “employee benefit plan” within the meaning of ERISA. The Court held that such a promise was not an employee benefit plan, and thus ERISA did not preempt the employees' claims in that case. 109 S.Ct. at 1672, 104 L.Ed.2d at 108. The Morash Court distinguished-severance pay plans from the" }, { "docid": "8462354", "title": "", "text": "program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) of this title [which includes “severance or similar benefits”] (other than pensions on retirement or death, and insurance to provide such pensions). Id. § 1002(1). ERISA contains a broad preemption provision, which states that its regulatory provisions 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. Id. § 1144(a). Section 1003(a) makes ERISA applicable, with exceptions not here relevant, to “any employee benefit plan ... established or maintained — (1) by any 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.” Fleet does not question that it is subject to ERISA. If an employer’s program is an employee welfare benefit plan, ERISA preempts state laws that “provide an alternative cause of action to employees to collect benefits protected by ERISA.” Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 146 (2d Cir.), cert. denied, 493 U.S. 811, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989). The question before us, therefore, is whether Fleet’s undertaking to give its employees 60-days additional pay upon termination of their employment following the consolidation of its functions constituted an “employee welfare benefit plan” under ERISA. B. The Supreme Court dealt with a closely related question in Fort Halifax Packing Co. v. Coyne, 482" }, { "docid": "22923597", "title": "", "text": "by the statute. 29 U.S.C. § 1144(a) (1982). However, this broad preemption provision is not without qualification and, pertinent to this case, excepts from preemption laws that “regulate insurance.” 29 U.S.C. § 1144(b)(2)(A) (1982). The district court concluded that New York Insurance Law § 4216(d) is covered by the preemption clause and is not preserved by the savings clause as a law that regulates insurance. For the reasons set forth below, we agree. ERISA applies to employee benefit plans, not employee benefits. Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 7, 107 S.Ct. 2211, 2215, 96 L.Ed.2d 1 (1987). ERISA defines an employee welfare benefit plan, in pertinent part, as “any plan ... established or maintained by an employer ... for the purpose of providing ... participants or their beneficiaries, through the purchase of insurance ... benefits in the event of ... death.” 29 U.S.C. § 1002(1)(A) (1982). In Fort Halifax, the Supreme Court held that ERISA does not preempt a state statute requiring employ ers to make a one-time severance payment to employees in the event of a plant closing, where the state statute relates to an employee benefit, not an employee benefit plan. The plaintiff argues that Fort Halifax is sufficiently close to her case to mandate a judgment in her favor. We believe that Mrs. Howard’s reliance on Fort Halifax is misplaced. While the right to convert a group policy to an individual policy and the right to notice of that privilege are undeniably employee benefits, Mr. Howard obtained these rights pursuant to the Alliance Group Life and Long Term Disability Insurance Plan, an employee welfare benefit plan within the meaning of § 1002(1). Although the one-time benefit to which the notice requirement pertains bears some superficial resemblance to the lone severance payment in Fort Halifax, it remains an integral part of the insurance plan administered by Gleason and Alliance and thereby renders the rationale of Fort Halifax inapposite. Because the New York statutory notice provision affects an ERISA covered plan, we must determine whether it is preempted. The Supreme Court has explained that “the express" }, { "docid": "5759352", "title": "", "text": "despite his resignation from Digital prior to any formal announcement regarding the nature, scope and eligibility requirements of the severance plan, he would be eligible for benefits under the plan. When Macomber subsequently applied for severance benefits under the TFSO, Digital ruled him ineligible, citing his voluntary resignation prior to the plan’s effective date of October 9, 1989. III. Analysis A. Is the TFSO an Employee Benefit Plan Under ERISA? Section 514 of ERISA expressly preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan_” 29 U.S.C. § 1144(a). Thus, if Macomber’s state common law claims “relate to” an “employee benefit plan,” they are preempted by ERISA. The definition of employee benefit plan set forth in ERISA provides little practical guidance to the court in resolving the issues presented by this case. Nevertheless, there is no dispute that severance benefit plans may, under certain circumstances, constitute employee benefit plans within ERISA’s meaning. Panto v. Moore Business Forms, Inc., 676 F.Supp. 412 (D.N.H.1988). any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance of otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services or (B) any benefit described in section 186(c) of this title (other than pensions on retirement or death, and insurance to provide such pensions). As the Supreme Court noted in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), the focus of an inquiry into whether a severance plan constitutes an ERISA-regulated employee welfare benefit plan must be the level of administrative obligations imposed upon the employer by the plan: Congress intended preemption to afford employers the" }, { "docid": "5804574", "title": "", "text": "at 1002(3), and “welfare plan” includes any program which provides benefits for contingencies such as illness, accident, disability, death, or unemployment, id. at § 1002(1). Severance pay plans are explicitly included within the definition of “welfare plan”. 29 C.F.R. § 2510.3-l(a)(3) (1986) (“the effect of section 3(1)(B) of the Act is to include within the definition of ‘welfare plan’ those plans which provide holiday and severance benefits, and benefits which are similar (for example, benefits which are in substance severance benefits, although not so characterized).”) It is clear on the record before the Court that the severance pay plan here at issue is an employee welfare benefit plan to which ERISA applies. See Gilbert v. Burlington Indus., Inc., 765 F.2d 320, 324-26 (2d Cir.1985), aff'd mem., — U.S. -, 106 S.Ct 3267, 91 L.Ed.2d 558 (1986); Holland v. Burlington Indus., Inc., 772 F.2d 1140, 1144-46 (4th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 3271-72, 91 L.Ed.2d 562 (1986); Jung v. FMC Corp., 755 F.2d 708, 710 n. 2 (9th Cir.1985); Donovan v. Dillingham, 688 F.2d 1367, 1371 & n. 4 (11th Cir.1982) (en banc). II. The Decision to Deny Benefits A. The ERISA Standard of Review Severance pay plans are not subject to ERISA’s participation and vesting requirements, 29 U.S.C. § 1051(1), or ERISA’s funding requirements, id. at § 1081(a)(1). However, such plans are subject to the reporting and disclosure requirements, id. at §§ 1021-1031, and are subject to the standards relating to fiduciary responsibility, id. at §§ 1101-1114. Applicability of ERISA to the plan at issue having been established, Joy’s severance pay plan is, accordingly, subject to ERISA’s reporting, disclosure, and fiduciary requirements. Furthermore, regardless of whether and to what extent Joy complied with these administrative and reporting requirements, ERISA operates to protect plaintiffs’ interests. Blau v. Del Monte Corp., 748 F.2d 1348, 1352 (9th Cir.1984) (and citations therein), cert. denied, — U.S. -, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985); Gilbert, supra, 765 F.2d at 328-29. However, ERISA was also crafted to protect the interests of employers by putting an end to conflict and inconsistent state regulation" }, { "docid": "23523818", "title": "", "text": "in connection with pension plans and left the employer with considerable flexibility with respect to welfare plans. See, e.g., S.Rep. No. 383, 93d Cong., 2d Sess. 18, reprinted in 1974 U.S.Code Cong. & Admin.News (“USCCAN”) 4639, 4890, 4904 (Congress sought to “keep[] costs within reasonable limits”); id. at 51, USCCAN at 4935 (requiring vesting of ancillary benefits “would seriously complicate the administration and increase the cost of plans whose primary function is to provide retirement income”). Thus, employee pension benefit plans are subject to elaborate accrual, vesting, and funding requirements. 29 U.S.C. §§ 1051-1085. On the other hand, welfare benefit plans, though subject to certain disclosure and fiduciary requirements, see id. §§ 1021-1031, 1101-1114, “are exempt from the more stringent ERISA requirements,” Young v. Standard Oil (Indiana), 849 F.2d 1039, 1045 (7th Cir.), cert. denied, 488 U.S. 981, 109 S.Ct. 529, 102 L.Ed.2d 561 (1988), and welfare benefits are thus unaccrued and nonvested. An unfunded severance plan is an “employee welfare benefit plan” under § 1002(1). Gilbert v. Burlington Industries, Inc., 765 F.2d 320, 325 (2d Cir.1985), aff'd mem., 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 558 (1986); accord Holland v. Burlington Industries, Inc., 772 F.2d 1140, 1145 (4th Cir.1985), aff'd mem., 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 559 (1986); Adams v. Avondale Industries, Inc., 905 F.2d 943, 947 (6th Cir.), cert. denied, — U.S. —, 111 S.Ct. 517, 112 L.Ed.2d 529 (1990); Scott v. Gulf Oil Corp. 754 F.2d 1499, 1503 (9th Cir.1985); see also Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 17-18, 107 S.Ct. 2211, 2220-21, 96 L.Ed.2d 1 (1987); Schwartz v. Newsweek, Inc., 827 F.2d 879, 881 n. 2 (2d Cir.1987) (“ Fort Halifax ... adopted [Gilbert v. Burlington Industries’] holding ... that an employer severance pay plan ..., which pays benefits on an ongoing basis to employees severed under certain circumstances, is an ‘employee welfare benefit plan’ under ERISA.”). Since severance benefits are welfare benefits and an employee’s interest in a welfare benefit plan is not vested, the employer has no continuing obligation to provide severance benefits; under ERISA, the employer" }, { "docid": "20265790", "title": "", "text": "section ... or its definitions section.”). Thus, even though the CCSA is explicitly governed by West Virginia law and does not reference ERISA’s comprehensive reporting and disclosure requirements, the court still must examine the CCSA to determine if it constitutes an ERISA “plan.” 2. What Constitutes an ERISA “Plan” The parties were asked by the court to brief whether the CCSA is an ERISA “plan.” Section 514(a) of ERISA preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a) (1999). An “employee welfare benefit plan” is defined as “any plan, fund, or program ... to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants,” inter alia, severance benefits. 29 U.S.C. § 1002(1)(B) (1999); see also Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 7 n. 5, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987) (explaining that severance benefits come within the definition of an employee welfare benefit plan); Biggers v. Wittek Indus., Inc., 4 F.3d 291, 297 (4th Cir.1993) (“It is beyond question that plans established by an employer to provide severance benefits are employee welfare benefit plans within the scope of ERISA.” (citations omitted)). Not every agreement that provides for the payment of severance benefits, however, is an ERISA plan. ERISA was intended to provide “for the federal regulation of plans, not merely benefits.” Emmenegger v. Bull Moose Tube Co., 197 F.3d 929, 934 (8th Cir.1999) (citing Fort Halifax, 482 U.S. at 11, 107 S.Ct. 2211). Therefore, ERISA will only be implicated if the benefits involved are administered according to a plan. 3. The Fort Halifax Test The statutory definition provides little assistance in determining whether such a “plan” exists. See Belanger v. Wyman-Gordon Co., 71 F.3d 451, 454 (1st Cir.1995) (“The text of ERISA itself affords scant guidance as to what constitutes a covered ‘plan.’ ”). As a result, case law controls in determining whether a benefit program constitutes an ERISA plan. Significantly, the Fourth Circuit has not developed a specific framework to" } ]

[ { "docid": "8193906", "title": "", "text": "displayed, or even that the victim be aware of it. See King, 665 F.3d at 253; Goldman, 367 N.E.2d at 1182. There is a material difference between the presence of a weapon, which produces a risk of violent force, and the actual or threatened use of such force. Only the latter falls • within ACCA’s force clause. Offenses presenting only a.risk of violence fall within ACCA’s residual clause, see 18 U.S.C. § 924(e)(2)(B)(ii) (defining a violent felony to include an offense that “otherwise involves conduct, that presents a serious potential risk of physical injury to another”), which, as the government concedes, does not apply here. See Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015) (holding the residual clause is unconstitutionally vague and, hence, imposing an 'increased sentence under the residual clause violates the Constitution’s guarantee of due process). Nor can we presume an implied threat to use a weapon from a defendant’s mere possession of it. As we explained in Werle, 815 F.3d at 622, “a defendant could be convicted of felony riot if there was a knife in his pocket or a gun within his reach but he did not use or threaten to use physical force. This would -not qualify as a crime of violence under the ACCA.” The mere possession of a weapon, therefore, does not bring Massachusetts’ armed robbery statute within ACCA’s force clause. We acknowledge the First - Circuit’s holding in United States v. Luna, 649 F.3d 91 (1st Cir.2011). Addressing .the same Massachusetts armed robbery statute at issue here, Luna held the statute satisfied the force clause because the defendant had “provided no reason for us to conclude that the type of force involved in armed robbery is not ‘violent force — that is, force capable of causing physical pain or injury,’ and we see.no reason to do so.” Id, at 108-09, (citation omitted) (quoting Johnson, 559 U.S. at 140, 130 S.Ct. 1265). Lima, however, does not carry significant persuasive weight. The court’s discussion of the Johnson issue consists of only a single sentence, provides no reasoning" } ]

[ { "docid": "16978047", "title": "", "text": "another.” Common law robbery itself is, after all—and has always been—a crime against a person. Certainly the additional element of “use” of a dangerous or deadly weapon supplies at minimum a “threat” of physical force against the person of another. And because the means employed is a “dangerous or deadly weapon,” the required degree of force— that is, “violent force”—is present. In that respect our case is different than a recent Ninth Circuit decision, United States v. Parnell, 818 F.3d 974 (9th Cir. 2016), holding that a prior Massachusetts armed robbery conviction was not a violent felony under the force clause. Massachusetts armed robbery does not require “use” of the dangerous or deadly weapon: the victim does not even need to be aware of the presence of the weapon. Appellant’s fall-back argument is that even if the crime includes the dangerous or deadly weapon component as an element, it still sweeps too broadly, because a weapon such as poison, an “open flame,” or “lethal bacteria” could be used and those dangerous weapons would not supply the requisite “physical force against the person of another.” We doubt that these weapons could be administered without at least some level of physical force. Cf. United States v. Castleman, — U.S.-, 134 S.Ct. 1405, 1415, 188 L.Ed.2d 426 (2014) (reasoning that poison and other “indirect” causes of physical harm require common-law “force”). But in any event, we think the hypotheticals are too farfetched to give us pause. The Supreme Court in other cases applying the categorical approach has cautioned against excessive “legal imagination.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007); Moncrieffe v. Holder, — U.S.-, 133 S.Ct. 1678, 1684-85, 185 L.Ed.2d 727 (2013). In determining whether a state statute qualifies as a violent felony,, we. focus on “realistic probabilities],” not “theoretical possibilities]” that Maryland “would apply its [law] to conduct that falls outside” the force clause. Duenas-Alvarez, 549 U.S. at 193, 127 S.Ct. 815; see also Moncrieffe, 133 S.Ct. at 1684-86 (“[0]ur focus [under the categorical approach] on the minimum conduct criminalized by the state statute is" }, { "docid": "9682648", "title": "", "text": "conviction for a crime that has an element involving a “dangerous or deadly weapon” can be obtained even in the absence of the victim’s awareness of the weapon, then that crime does not necessarily require the “violent force” that Johnson (2010) requires of a “violent felony” under the elements clause. A defendant can be convicted of North Carolina AWDWIK even .when the victim is not aware of the presence of the weapon: Mr. Brown points to a case where a defendant was convicted of North Carolina AWDWIK based on that defendant’s attempts to .kill his wife by secretly poisoning her. Def.’s Suppl. Mot., ECF No. 43 at 13 (citing State v. Jones, 54 N.C.App. 482, 283 S.E.2d 546, 547 (1981)). Poisoning is the quintessential sort of criminal activity where “the victim does not even need to be aware pf the presence of the weapon.” See Redrick, 841 F.3d at 484. Accordingly, North Carolina AWDWIK does not categorically require “violent force.” Consequently, .Mr. Brown’s North Carolina AWDWIK conviction does not qualify as an ACCA “violent felony. ” To be sure, the Redriek court did consider and reject the argument “that even if [Maryland armed robbery] includes the dangerous or deadly weapon component as an element, it still sweeps too broadly, because a weapon such as poison, an ‘open flame,’ or ‘lethal bacteria’ could be used and those dangerous weapons would not supply the requisite ‘physical force against the person of another.’ ” Id. at 484. But neither of the Redriek court’s bases for rejecting this argument directs this Court to abandon its conclusion that North Car olina AWDWIK, unlike Maryland armed robbery, does not require “violent force” and thus is not a “violent felony.” First, the Redrick court stated that it “doubt[ed] that these weapons [referring to poison, an open flame, and lethal bacteria] could be administered without at least some level of physical force” and supported that statement by citing United States v. Castleman, — U.S. —, 134 S.Ct. 1405, 1415, 188 L.Ed.2d 426 (2014) for the proposition that “poison and other ‘indirect’ causes of physical harm require common-law ‘force.’" }, { "docid": "9682647", "title": "", "text": "force” described by Johnson (2010). It would seem to be the case that North Carolina AWDWIK’s element. of assault “with a deadly weapon,” just like Maryland armed robbery’s element of use of a “dangerous or deadly weapon,” includes “the required degree of force—that is, ‘violent force.’ ” See id. But that first impression is- deceiving. After explaining that Maryland armed robbery’s element of use of a “dangerous or deadly weapon” includes the. “required degree of force” of violent force, the Redriek court explained that “[i]n that respect our case is different than a recent Ninth Circuit decision, United States v. Parnell, 818 F.3d 974 (9th Cir. 2016), holding that a prior Massachusetts armed- robbery conviction was not a violent felony under the [elements] clause.” Id. The court explained that the cases were different because “Massachusetts armed robbery does not require ‘use’ of the- dangerous or deadly weapon: the victim does not even need to be aware of the presence of the weapon.” Id. In drawing this distinction, the Redriek court thus indicated that if a conviction for a crime that has an element involving a “dangerous or deadly weapon” can be obtained even in the absence of the victim’s awareness of the weapon, then that crime does not necessarily require the “violent force” that Johnson (2010) requires of a “violent felony” under the elements clause. A defendant can be convicted of North Carolina AWDWIK even .when the victim is not aware of the presence of the weapon: Mr. Brown points to a case where a defendant was convicted of North Carolina AWDWIK based on that defendant’s attempts to .kill his wife by secretly poisoning her. Def.’s Suppl. Mot., ECF No. 43 at 13 (citing State v. Jones, 54 N.C.App. 482, 283 S.E.2d 546, 547 (1981)). Poisoning is the quintessential sort of criminal activity where “the victim does not even need to be aware pf the presence of the weapon.” See Redrick, 841 F.3d at 484. Accordingly, North Carolina AWDWIK does not categorically require “violent force.” Consequently, .Mr. Brown’s North Carolina AWDWIK conviction does not qualify as an ACCA “violent felony." }, { "docid": "16978042", "title": "", "text": "the government really makes no positive argument that Maryland common-law robbery is a violent felony, so we will rest on its Fourth Circuit concession. Even though robbery remains a common law crime in Maryland, the legislature did act prior to defendant’s convictions; it passed a law providing that a person who committed robbery is subject to imprison ment for not more than fifteen years, but it also provided that a person who commits or attempts to commit robbery with a dangerous or deadly weapon is subject to imprisonment not exceeding twenty years. Md. Code, Art. 27 §§ 486, 488 (repealed). These provisions appear to create two separate crimes: robbery and armed robbery. The problem for us is that the Court of Appeals of Maryland has described the dangerous weapon portion of the penalty statute as a “sentence enhancement” to the single offense of common law robbery, not an element of the separate offense of armed robbery. See, e.g., Bowman v. State, 314 Md. 725, 552 A.2d 1303, 1305 (1989); Whack v. State, 288 Md. 137, 416 A.2d 265, 266 (1980). Accordingly, appellant argues with some force that his conviction was for simple rather than armed robbery; a sentence enhancement, which is traditionally imposed by a judge after conviction, is not an element of a distinct crime. If that were true—if the dangerous weapon question was reserved for the sentencing judge— appellant would be correct that it could not be, as a matter of constitutional law, an “element” of a crime. See In re Winship, 397 U.S. 358, 365, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). But it is not so. As the Maryland Court of Special Appeals has applied the dangerous weapon provision, “the State must prove beyond a reasonable doubt, number one, that there was a robbery; and number two, that it was committed with the use of a deadly or dangerous weapon.” Battle v. State, 65 Md.App. 38, 499 A.2d 200, 203 (1985) (emphasis added); see also Wadlow v. State, 335 Md. 122, 642 A.2d 213, 216 (1994) (explaining that under Maryland law, sentence enhancements having to do" }, { "docid": "16978050", "title": "", "text": "Snowden v. State, 321 Md. 612, 583 A.2d 1056, 1059 (1991). Assault and battery each require force or threatened force against a person: “Under Maryland law, a common-law assault consists of ‘(1) an attempt to commit a battery or (2) an unlawful intentional act which places another in reasonable apprehension of receiving an immediate battery.’ ... A ‘battery,’ in turn, ‘is any unlawful application of force, direct or indirect, to the body of the victim.’ ” United States v. Coleman, 158 F.3d 199, 201 (4th Cir. 1998) (en banc) (emphasis added) (quoting Lamb v. State, 93 Md.App. 422, 613 A.2d 402, 446 (1992)). Even assuming the amount of force required by simple robbery is insufficient to qualify as “violent force,” the target of that force (the relevant question at this point) is a person, not property. And armed robbery, accomplished by the use of a “dangerous or deadly weapon,” explicitly contemplates bodily harm. Weapons are “deadly” to humans, not property. Because we have concluded that Maryland Robbery with a Deadly Weapon is a violent felony under the Act’s still-valid force clause, appellant’s 188-month sentence remains legal and he is therefore not entitled to a new sentence. So ordered. . 18 U.S.C. § 924(e)(1) (2012) (mandatory minimum). . These counts were charged pursuant to 21 U.S.C. § 841(a)(1), (b)(l)(B)(iii) (2012), 18 U.S.C. § 922(g)(1) (2012), and 18 U.S.C. 924(c)(1) (2012), respectively. . 18 U.S.C. § 924(e)(2)(B)(i)-(ii) (2012) (emphasis added) (definition of “violent felony”). The force clause is sometimes referred to as the “elements clause.” E.g., Welch v. United States, — U.S. -, 136 S.Ct. 1257, 1261, 194 L.Ed.2d 387 (2016); cf. United States v. Sheffield, 832 F.3d 296, 312 (D.C. Cir. 2016). . In Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) and James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), the Supreme Court rejected arguments made in dissent that the residual clause was void for vagueness. . The Court of Appeals of Maryland has adopted an objective definition of \"dangerous or deadly weapon\" and held that for an" }, { "docid": "16978046", "title": "", "text": "at 582, 110 S.Ct. 2143. And in any event, even some Maryland cases refer to the “separate offenses” of armed robbery and simple robbery: “[R]obbery is usually characterized as one offense, with the division between armed robbery and basic robbery being for purposes of punishment. But, for some purposes, they are regarded as separate offenses with robbery being the lesser included offense of armed robbery.” Hagans v. State, 316 Md. 429, 559 A.2d 792, 799 (Md. 1989) (citations omitted). Although the offenses are the same for double jeopardy purposes, the Court of Appeals of Maryland said, “only the offense of robbery with a deadly weapon requires proof of an additional element.” Bynum v. State, 277 Md. 703, 357 A.2d 339, 341 (1976). We have little difficulty, then, in concluding that Maryland armed robbery—a crime that differs from simple robbery in its requirement that the defendant commit the crime with the use of a dangerous or deadly weapon —contains “as an element the use, attempted use, or threatened use of physical force against the person of another.” Common law robbery itself is, after all—and has always been—a crime against a person. Certainly the additional element of “use” of a dangerous or deadly weapon supplies at minimum a “threat” of physical force against the person of another. And because the means employed is a “dangerous or deadly weapon,” the required degree of force— that is, “violent force”—is present. In that respect our case is different than a recent Ninth Circuit decision, United States v. Parnell, 818 F.3d 974 (9th Cir. 2016), holding that a prior Massachusetts armed robbery conviction was not a violent felony under the force clause. Massachusetts armed robbery does not require “use” of the dangerous or deadly weapon: the victim does not even need to be aware of the presence of the weapon. Appellant’s fall-back argument is that even if the crime includes the dangerous or deadly weapon component as an element, it still sweeps too broadly, because a weapon such as poison, an “open flame,” or “lethal bacteria” could be used and those dangerous weapons would not supply" }, { "docid": "9682645", "title": "", "text": "or injury to another person.’” Def.’s Suppl. Mot., ECF No. 43 at 11 (quoting 559 U.S. at 140, 130 S.Ct. 1265). Mr. Brown argues that a defendant can be convicted of North Carolina AWD-WIK even in the absence of the “violent force” required by Johnson (2010), such as when a defendant uses poison in an attempt to kill someone. Id. at 13, 104 S.Ct. 2901 (citing State v. Jones, 54 N.C.App. 482, 283 S.E.2d 546, 547 (1981)). Second, Mr. Brown argues that in order to be a “violent felony” under the elements clause, a crime must require the intentional or purposeful “use, attempted use, or threatened use” of physical force, not just the reckless or negligent “use, attempted use, or threatened use” of physical force. Def.’s Reply, ECF No. 50 at 27-35. Because a conviction for North Carolina AWDWIK can be sustained upon a finding of just culpable or criminal negligence, such a conviction, Mr. Brown maintains, cannot qualify as a “violent felony” conviction. Id. at 35-37. The government argues that Mr. Brown’s first argument—that North Carolina AWDWIK cannot be a “violent felo ny” under the elements clause because it does not require the “Violent force” described by the Supreme Court in Johnson (2010)—is foreclosed by United States v. Redrick, 841 F.3d 478 (D.C. Cir. 2016). Gov’t’s Opp., ECF No. 45 at 12-13. There, the D.C. Circuit concluded that Maryland armed robbery—a crime that requires “the use of a dangerous or deadly weapon”“contains ‘as an element the use, attempted use, or threatened use of physical force against the person of another,’ ” and, accordingly, counts as an ACCA “violent felony.” 841 F.3d at 484. The court explained that Maryland armed robbery’s “element of ‘use’ of a dangerous or deadly weapon supplies at minimum a ‘threat’ of physical force against the person of another,” and explained that “because the means employed is a.‘dangerous or deadly weapon,’ the required degree of force—that is, ‘violent force’—is present.” Id. At first blush, it does §eem like the government is correct that Redriek forecloses the conclusion that North Carolina AWDWIK does not require the “violent" }, { "docid": "16978051", "title": "", "text": "under the Act’s still-valid force clause, appellant’s 188-month sentence remains legal and he is therefore not entitled to a new sentence. So ordered. . 18 U.S.C. § 924(e)(1) (2012) (mandatory minimum). . These counts were charged pursuant to 21 U.S.C. § 841(a)(1), (b)(l)(B)(iii) (2012), 18 U.S.C. § 922(g)(1) (2012), and 18 U.S.C. 924(c)(1) (2012), respectively. . 18 U.S.C. § 924(e)(2)(B)(i)-(ii) (2012) (emphasis added) (definition of “violent felony”). The force clause is sometimes referred to as the “elements clause.” E.g., Welch v. United States, — U.S. -, 136 S.Ct. 1257, 1261, 194 L.Ed.2d 387 (2016); cf. United States v. Sheffield, 832 F.3d 296, 312 (D.C. Cir. 2016). . In Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) and James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), the Supreme Court rejected arguments made in dissent that the residual clause was void for vagueness. . The Court of Appeals of Maryland has adopted an objective definition of \"dangerous or deadly weapon\" and held that for an instrument to so qualify under § 488, “the instrument must be (1) designed as ‘anything used or designed to be used in destroying, defeating, or injuring an enemy, or as an instrument of offensive or defensive combat’; (2) under the circumstances of the case, immediately useable to inflict serious or deadly harm (e.g., unloaded gun or starter’s pistol useable as a bludgeon); or (3) actually used in a way likely to inflict that sort of harm (e.g., microphone cord used as a garrote).” Brooks v. State, 314 Md. 585, 552 A.2d 872, 880 (1989) (citation omitted) (quoting Bennett v. State, 237 Md. 212, 205 A.2d 393, 394 (1964)). A victim’s subjective belief that the item was a \"dangerous or deadly weapon,” without more, is insufficient to sustain an armed robbery conviction in Maryland." }, { "docid": "16978033", "title": "", "text": "SILBERMAN, Senior Circuit Judge: Appellant pleaded guilty to being a felon in unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Under the Armed Career Criminal Act (the “Act”), a felon so convicted is subject to a mandatory minimum of fifteen years imprisonment if he was previously convicted of three charges of either “violent felonies” or “serious drug offenses.” The plea agreement recognized that appellant would be sentenced pursuant to this sentence enhancement, which raised his sentence from a maximum of ten years to a minimum of fifteen years imprisonment. (The court imposed a sentence of 188 months in accordance with the sentencing guidelines range.) Appellant now contests the applica bility of the enhancement in light of an intervening Supreme Court opinion, Johnson v. United States, — U.S. ——, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which held that one of the Act’s definitions of a violent felony—which appellant asserts the district court may have relied on—is unconstitutionally vague. We affirm the conviction because, whether or not the district judge relied on the unconstitutional provision, as a matter of law, another of the Act’s definitions of “violent felony” applies and therefore the appellant’s sentence remains valid. I. Appellant was indicted on three counts: possession with intent to distribute at least twenty-eight grams of cocaine base, unlawful possession of a firearm (and ammunition) by a convicted felon, and such possession during a drug trafficking offense. In return for pleading guilty to simple possession of the firearm, the government dropped the other two counts. Four of Redrick’s prior eleven convictions triggered the Act’s mandatory minimum, raising his sentence from a maximum of ten years to a minimum of fifteen years imprisonment. They were: (1) a 1983 District of Columbia Armed Robbery conviction (“D.C. armed robbery”); (2) a 1985 Maryland Robbery with a Deadly Weapon conviction (“Maryland armed robbery”); (3) a 1989 Maryland Robbery with a Deadly Weapon conviction; and (4) a 1990 District of Columbia Possession with Intent To Distribute PCP and Possession with Intent To Distribute Marijuana conviction. The Act defines a “violent felony” as an offense punishable" }, { "docid": "9682649", "title": "", "text": "” To be sure, the Redriek court did consider and reject the argument “that even if [Maryland armed robbery] includes the dangerous or deadly weapon component as an element, it still sweeps too broadly, because a weapon such as poison, an ‘open flame,’ or ‘lethal bacteria’ could be used and those dangerous weapons would not supply the requisite ‘physical force against the person of another.’ ” Id. at 484. But neither of the Redriek court’s bases for rejecting this argument directs this Court to abandon its conclusion that North Car olina AWDWIK, unlike Maryland armed robbery, does not require “violent force” and thus is not a “violent felony.” First, the Redrick court stated that it “doubt[ed] that these weapons [referring to poison, an open flame, and lethal bacteria] could be administered without at least some level of physical force” and supported that statement by citing United States v. Castleman, — U.S. —, 134 S.Ct. 1405, 1415, 188 L.Ed.2d 426 (2014) for the proposition that “poison and other ‘indirect’ causes of physical harm require common-law ‘force.’ ” Id. But this Court does not read the Redrick court’s statement here as a holding that common-law force meets the Johnson (2010) threshold for “violent force” precisely because the Supreme Court explained in Castleman that in Johnson (2010) the Court “declined to read the common-law meaning of ‘force’ into ACCA’s definition of a ‘violent felony.’ ” 134 S.Ct. at 1410. Thus the Supreme Court in Castleman reiterated and reaffirmed—and did not alter—its holding from Johnson (2010) that in ACCA “the phrase physical force must mea[n] violent force,” not common-law force. Id. (internal quotation marks omitted) (quoting Johnson (2010), 559 U.S. at 140, 130 S.Ct. 1265). Accordingly, this Court takes the Redrick court’s statement that poison and other indirect causes of physical harm “could [not] be administered without at least some level of physical force” as an observation that common-law force is not absent when poison and other indirect causes of harm are used as a crime’s “dangerous or deadly weapon” rather than as a holding that in this Circuit common-law force can be equated" }, { "docid": "9682651", "title": "", "text": "with Johnson (2010)-style “violent force.” Understood properly in this manner, the Redrick court’s statement about “some level of physical force” does not require this Court to conclude that North Carolina AWDWIK—which can be committed through the secret use of poison—is a “violent felony.” Second, the Redrick court stated that the hypothetical concerning poison, an open flame, and lethal bacteria in the context of Maryland armed robbery were “too farfetched” to give it any pause. 841 F.3d at 484-85. The court explained that the Supreme Court “has cautioned against excessive ‘legal imagination,’ ” id. (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007); Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, 1684-85, 185 L.Ed.2d 727 (2013)), and thus in “determining whether a state statute qualifies as a violent felony, we focus on ‘realistic probabilities,’ not ‘theoretical possibilities’ that Maryland ‘would apply its law to conduct that falls outside’ the [elements] clause.” Id. (alterations omitted) (citing Duenas-Alvarez, 549 U.S. at 193, 127 S.Ct. 815). Accordingly, because it had been pointed to no Maryland case in which a Maryland armed robbery conviction had actually been obtained based on the use of poison, an open flame, or lethal bacteria, the Redrick court would not contemplate concluding that Maryland armed robbery did not require “violent force.” Id. In the context of North Carolina AWDWIK, however, a conviction based on secret poisoning is hardly a figment of the legal imagination. As Mr. Brown has demonstrated, such a conviction is grounded in a realistic rather than a theoretical possibility: At least one North Carolina AWDWIK conviction has been obtained based on secret poisoning. See Def.’s Suppl. Mot., ECF No. 43 at 13 (citing State v. Jones, 54 N.C.App. 482, 283 S.E.2d 546, 547 (1981)). Thus, under the categorical approach, North Carolina AWDWIK—unlike Maryland armed robbery—does not require “violent force” and, accordingly, does not qualify as an ACCA “violent felony.” In any event, even if this Court has misunderstood Redrick, Mr. Brown’s alternative argument—that in order to be a “violent felony” under the elements clause, a crime must require the intentional" }, { "docid": "16978034", "title": "", "text": "the unconstitutional provision, as a matter of law, another of the Act’s definitions of “violent felony” applies and therefore the appellant’s sentence remains valid. I. Appellant was indicted on three counts: possession with intent to distribute at least twenty-eight grams of cocaine base, unlawful possession of a firearm (and ammunition) by a convicted felon, and such possession during a drug trafficking offense. In return for pleading guilty to simple possession of the firearm, the government dropped the other two counts. Four of Redrick’s prior eleven convictions triggered the Act’s mandatory minimum, raising his sentence from a maximum of ten years to a minimum of fifteen years imprisonment. They were: (1) a 1983 District of Columbia Armed Robbery conviction (“D.C. armed robbery”); (2) a 1985 Maryland Robbery with a Deadly Weapon conviction (“Maryland armed robbery”); (3) a 1989 Maryland Robbery with a Deadly Weapon conviction; and (4) a 1990 District of Columbia Possession with Intent To Distribute PCP and Possession with Intent To Distribute Marijuana conviction. The Act defines a “violent felony” as an offense punishable by more than one year in prison that “has as an element the use, attempted use, or threatened use of physical force against the person of another,” or is the crime of burglary, arson, or extortion, involves use of explosives, or is an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” These three clauses - are referred to as the force clause, the enumerated offense clause, and the residual clause. The residual clause, as is apparent, sweeps very broadly and, as we noted, in Johnson the Supreme Court—after having twice affirmed its constitutionality—reversed itself and declared the clause unconstitutionally vague. 135 S.Ct. at 2557. After Johnson, a crime is a “violent felony” only if it meets the requirements of the force clause or the enumerated offense clause. At the time of the plea agreement, it is fair to say that no one—the government, the judge, or the appellant—could reasonably have anticipated Johnson. All parties believed that appellant was subject to the Act’s enhancement before Johnson, although the" }, { "docid": "9682650", "title": "", "text": "” Id. But this Court does not read the Redrick court’s statement here as a holding that common-law force meets the Johnson (2010) threshold for “violent force” precisely because the Supreme Court explained in Castleman that in Johnson (2010) the Court “declined to read the common-law meaning of ‘force’ into ACCA’s definition of a ‘violent felony.’ ” 134 S.Ct. at 1410. Thus the Supreme Court in Castleman reiterated and reaffirmed—and did not alter—its holding from Johnson (2010) that in ACCA “the phrase physical force must mea[n] violent force,” not common-law force. Id. (internal quotation marks omitted) (quoting Johnson (2010), 559 U.S. at 140, 130 S.Ct. 1265). Accordingly, this Court takes the Redrick court’s statement that poison and other indirect causes of physical harm “could [not] be administered without at least some level of physical force” as an observation that common-law force is not absent when poison and other indirect causes of harm are used as a crime’s “dangerous or deadly weapon” rather than as a holding that in this Circuit common-law force can be equated with Johnson (2010)-style “violent force.” Understood properly in this manner, the Redrick court’s statement about “some level of physical force” does not require this Court to conclude that North Carolina AWDWIK—which can be committed through the secret use of poison—is a “violent felony.” Second, the Redrick court stated that the hypothetical concerning poison, an open flame, and lethal bacteria in the context of Maryland armed robbery were “too farfetched” to give it any pause. 841 F.3d at 484-85. The court explained that the Supreme Court “has cautioned against excessive ‘legal imagination,’ ” id. (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007); Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, 1684-85, 185 L.Ed.2d 727 (2013)), and thus in “determining whether a state statute qualifies as a violent felony, we focus on ‘realistic probabilities,’ not ‘theoretical possibilities’ that Maryland ‘would apply its law to conduct that falls outside’ the [elements] clause.” Id. (alterations omitted) (citing Duenas-Alvarez, 549 U.S. at 193, 127 S.Ct. 815). Accordingly, because it had been pointed" }, { "docid": "1344466", "title": "", "text": "N.M. 468, 513 P.2d 402. If the victim’s resistance is slight, then logically the force used to overcome it may also be slight, yet still sufficient to satisfy robbery’s force element. New Mexico's line of purse-snatching cases illustrates this point, and shows that criminal defendants in New Mexico have been convicted of robbery for using less than Curtis Johnson physical force. . The Tenth Circuit has \"consistently applied the same analysis” to the ACCA and U.S.S.G. § 4B1.2 where, as here, “the clauses are virtually identical.” United States v. Mitchell, 653 Fed.Appx. 639, 642 (10th Cir. 2016)). However, it is worth noting that the Supreme Court has recently ruled that the advisory United States Sentencing Guidelines are not subject to void-for-vagueness challenges, and thus Section 4B1.2’s residual clause is not void for vagueness. Beckles v. United States, — U.S. -, 137 S.Ct. 886, 895-96, 197 L.Ed.2d 145 (2017). As such, even if an offense does not qualify as a violent felony or crime of violence under the elements clause of either the ACCA or Section 4B1.2, it could still qualify as a crime of violence under Section 4B1.2’s residual clause. . Unpublished decisions are not binding precedent in the Tenth Circuit,, but may be cited for their persuasive value. United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). . In armed robbery prosecutions involving an object that is not a statutorily enumerated deadly weapon, but rather is a deadly, weapon only because of its \"character and manner of use,” New Mexico courts do require proof that the object was used as a \"weapon with which dangerous wounds can be inflicted.” New Mexico v. Fernandez, 2007-NMCA-091, ¶ 7, 142 N.M. 231, 164 P.3d 112. However, this requirement does not apply to objects statutorily enumerated as deadly weapons, including loaded and unloaded firearms. Id. at ¶¶ 6-7 (quoting N.M. Stat. Ann. § 30-1-12(B)), Also, in Fuentes-, the New Mexico Court of Appeals stated that armed robbery \"requires the elements of robbery plus the use of a deadly weapon.” 1994-NMCA-158 at ¶ 8, 119 N.M. 104, 888 P.2d 986. However, this" }, { "docid": "9682646", "title": "", "text": "North Carolina AWDWIK cannot be a “violent felo ny” under the elements clause because it does not require the “Violent force” described by the Supreme Court in Johnson (2010)—is foreclosed by United States v. Redrick, 841 F.3d 478 (D.C. Cir. 2016). Gov’t’s Opp., ECF No. 45 at 12-13. There, the D.C. Circuit concluded that Maryland armed robbery—a crime that requires “the use of a dangerous or deadly weapon”“contains ‘as an element the use, attempted use, or threatened use of physical force against the person of another,’ ” and, accordingly, counts as an ACCA “violent felony.” 841 F.3d at 484. The court explained that Maryland armed robbery’s “element of ‘use’ of a dangerous or deadly weapon supplies at minimum a ‘threat’ of physical force against the person of another,” and explained that “because the means employed is a.‘dangerous or deadly weapon,’ the required degree of force—that is, ‘violent force’—is present.” Id. At first blush, it does §eem like the government is correct that Redriek forecloses the conclusion that North Carolina AWDWIK does not require the “violent force” described by Johnson (2010). It would seem to be the case that North Carolina AWDWIK’s element. of assault “with a deadly weapon,” just like Maryland armed robbery’s element of use of a “dangerous or deadly weapon,” includes “the required degree of force—that is, ‘violent force.’ ” See id. But that first impression is- deceiving. After explaining that Maryland armed robbery’s element of use of a “dangerous or deadly weapon” includes the. “required degree of force” of violent force, the Redriek court explained that “[i]n that respect our case is different than a recent Ninth Circuit decision, United States v. Parnell, 818 F.3d 974 (9th Cir. 2016), holding that a prior Massachusetts armed- robbery conviction was not a violent felony under the [elements] clause.” Id. The court explained that the cases were different because “Massachusetts armed robbery does not require ‘use’ of the- dangerous or deadly weapon: the victim does not even need to be aware of the presence of the weapon.” Id. In drawing this distinction, the Redriek court thus indicated that if a" }, { "docid": "9659067", "title": "", "text": "(“Maryland Robbery”); 1988 conviction in D.C. Superior Court for Assault with a Deadly Weapon (“DC ADW”); and a 1988 conviction in D.C. Superior Court.for possession with intent to distribute cocaine and possession of cocaine. The ACCA requires a mandatory minimum sentence of 15-years imprisonment, which was imposed on November 26, 1997. (See Judgment, Nov. 26, 1997, ECF No. 46.) Defendant did not file an appeal. At the time defendant was sentenced, the ACCA defined a “violent felony” as: any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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). Subsection (i) is known as the “elements clause”; subsection (ii)’s list of offenses is known as the “enumerated clause”; and the final phrase in subsection (ii) - “otherwise involves conduct that presents a serious potential risk of physical injury to another” - is known as the “residual clause.” United States v. Redrick, 841 F.3d 478, 480 (D.C. Cir. 2016). However, on June 26, 2015, the Supreme Court struck down the “residual clause” as unconstitutionally vague. See Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (“Johnson 2015”). Then, on April 16, 2016, the Supreme Court held that its holding in Johnson 2015 was “a substantive rule” that applies retroactively to cases on collateral review. Welch v. United States, — U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). Defendant had one year from the date of Johnson 2015 to file a § 2255 motion for collateral relief based on that decision, see 28 U.S.C. § 2255(f), but only a few months of the year remained by the time the Supreme Court decided Welch. Due" }, { "docid": "9659066", "title": "", "text": "MEMORANDUM OPINION ELLEN SEGAL HUVELLE, United States District Judge Defendant Ralph T. Wilson has filed a motion pursuant to 28 U.S.C. § 2255 to vacate and correct his sentence in light of the Supreme Court’s decisions in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) and Welch v. United States, — U.S. —, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). For the reasons stated herein, the motion is granted. BACKGROUND On November 26, 1997, defendant entered a plea of guilty to one count of possession of a firearm by a convicted felon after having been previously convicted of three crimes involving a violent felony or a serious drug offense, in violation of 18 U.S.C. § 922(g)(1) and the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). (See Gov’t Opp’n, Ex. A, ¶ 1 (Plea Agreement, Nov. 26, 1997), ECF No. Slid For purposes of the ACCA, defendant’s qualifying prior convictions included two violent felonies and one serious drug offense: a 1982 conviction in Maryland Circuit Court for robbery (“Maryland Robbery”); 1988 conviction in D.C. Superior Court for Assault with a Deadly Weapon (“DC ADW”); and a 1988 conviction in D.C. Superior Court.for possession with intent to distribute cocaine and possession of cocaine. The ACCA requires a mandatory minimum sentence of 15-years imprisonment, which was imposed on November 26, 1997. (See Judgment, Nov. 26, 1997, ECF No. 46.) Defendant did not file an appeal. At the time defendant was sentenced, the ACCA defined a “violent felony” as: any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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). Subsection (i) is known" }, { "docid": "1344451", "title": "", "text": "but need not “generally or openly display! ]” it. Id. at 979. The Parnell court went on to determine that mere possession of a dangerous weapon during a robbery does not satisfy the ACCA’s elements clause, because the elements clause requires the actual, attempted or threatened use of physical force, not a mere uncommunicated willingness or readiness to use such force. A willingness to use violent force is not the same as a threat to do so. The latter requires some outward expression or indication of an intention to inflict pain, harm or punishment. The former does not. Id. at 980 (emphasis in original) (citations omitted). Considering this reasoning in the context of armed robbery, the court stated that [t]he possession of a dangerous weapon may indicate a robber’s willingness to use that weapon if necessary to accomplish the criminal undertaking. The mere fact an individual is armed, however, does not mean he or she has used the weapon, or threatened to use it, in any way.... There is a material difference between the presence of a weapon, which produces a risk of violent force, and the actual or threatened use of such force. Only the latter falls within [the] ACCA’s elements clause. Id. (emphasis in original) (citations omitted). In contrast, federal appellate decisions holding that armed robbery (as distinct from simple robbery) is a violent felony under the ACCA’s elements clause have involved state statutes requiring the actual or threatened use of a dangerous or deadly weapon during the robbery. See, e.g., Redrick, 841 F.3d at 484 (Maryland armed robbery is a violent felony under ACCA’s elements clause; offense has as an element “use of a dangerous or deadly weapon”); United States v. Smith, 638 Fed.Appx. 216, 219 (4th Cir. 2016) (North Carolina armed robbery is a violent .felony under ACCA’s elements clause; offense has as an element “use or threatened use” of dangerous weapon); United States v. Johnson, 530 Fed.Appx. 528, 531-33 (6th Cir. 2013) (Tennessee armed robbery is a violent felony under ACCA’s elements clause; offense has as an element use or threat to use deadly weapon)." }, { "docid": "16978041", "title": "", "text": "does not fit squarely within either the categorical or modified categorical approaches. Robbery in Maryland is not a statutory crime; it retains its common law character. Under Maryland case law, simple robbery is “the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence or putting in fear.” Bowman v. State, 314 Md. 725, 552 A.2d 1303, 1305 (1989) (emphasis added); see also West v. State, 312 Md. 197, 539 A.2d 231, 234-35 (1988) (observing that Maryland simple robbery -includes larceny so long as the “victim resisted the taking and ... her resistance had been overcome,” even absent physical injury or force directed at the victim’s person).- The government has conceded that Maryland common law robbery is not a violent felony. To be sure, the government made that concession in the Fourth Circuit; whereas in a footnote in our case, it declines to make the same concession.. We would find such a divergence in Justice Department policy quite troubling if it were truly pressed, but the government really makes no positive argument that Maryland common-law robbery is a violent felony, so we will rest on its Fourth Circuit concession. Even though robbery remains a common law crime in Maryland, the legislature did act prior to defendant’s convictions; it passed a law providing that a person who committed robbery is subject to imprison ment for not more than fifteen years, but it also provided that a person who commits or attempts to commit robbery with a dangerous or deadly weapon is subject to imprisonment not exceeding twenty years. Md. Code, Art. 27 §§ 486, 488 (repealed). These provisions appear to create two separate crimes: robbery and armed robbery. The problem for us is that the Court of Appeals of Maryland has described the dangerous weapon portion of the penalty statute as a “sentence enhancement” to the single offense of common law robbery, not an element of the separate offense of armed robbery. See, e.g., Bowman v. State, 314 Md. 725, 552 A.2d 1303, 1305 (1989); Whack v. State, 288 Md. 137," }, { "docid": "1344452", "title": "", "text": "of a weapon, which produces a risk of violent force, and the actual or threatened use of such force. Only the latter falls within [the] ACCA’s elements clause. Id. (emphasis in original) (citations omitted). In contrast, federal appellate decisions holding that armed robbery (as distinct from simple robbery) is a violent felony under the ACCA’s elements clause have involved state statutes requiring the actual or threatened use of a dangerous or deadly weapon during the robbery. See, e.g., Redrick, 841 F.3d at 484 (Maryland armed robbery is a violent felony under ACCA’s elements clause; offense has as an element “use of a dangerous or deadly weapon”); United States v. Smith, 638 Fed.Appx. 216, 219 (4th Cir. 2016) (North Carolina armed robbery is a violent .felony under ACCA’s elements clause; offense has as an element “use or threatened use” of dangerous weapon); United States v. Johnson, 530 Fed.Appx. 528, 531-33 (6th Cir. 2013) (Tennessee armed robbery is a violent felony under ACCA’s elements clause; offense has as an element use or threat to use deadly weapon). As the Redrick court observed, the element of “use” of a dangerous or deadly weapon supplies at minimum a “threat” of‘physical force against the person of another. And because the means employed is a “dangerous or deadly weapon,” the required degree of force—that is, “violent force”—is present. 841 F.3d at 484. In its Objections, the Government relies on United States v. Ramon Silva, 608 F.3d 663 (10th Cir. 2010), to argue that New Mexico armed robbery nevertheless satisfies the ACCA’s elements clause. (Doc. 13 at 10-11.) In Ramon Silva, the Tenth Cir- ■ cuit held that New Mexico aggravated assault by means of “unlawfully assaulting or striking at another with a deadly weapon” is a violent felony under the elements clause. 608 F.3d at 669-74. The Government relies on the following language in Ramon Silva to support its position: threatening or engaging in menacing conduct toward a victim, with a weapon capable of causing death or great bodily harm, threatens the use of “force capable of causing physical pain or injury” in two different ways." } ]

[ { "docid": "7818488", "title": "", "text": "upon price whereupon he reentered the house, returning a short time later with Kawan Hill and 115.9 grams of cocaine base. The agent completed the sale and paid Hickey the balance of the purchase price. Barger and the agent then drove off and were subsequently arrested. As soon as the undercover agent departed, other DEA agents executed a search warrant at the residence. Agents recovered 115.5 grams of cocaine base from the home. At trial, Kawan Hill testified that Chambliss had delivered this cocaine. The agents also recovered a black coat belonging to John Hill. In the coat’s pockets were found 5.6 grams of cocaine base, a loaded .25 caliber pistol and a set of keys. The keys were later taken to John Hill’s residence where they were tested by opening the door. Chambliss, who identified himself as “Bernard Baker” at the time of his arrest, possessed part of the marked “buy money.” A beeper and cellular telephone were also seized from Chambliss. Telephone company records later reflected that calls had been placed from the cellular telephone to the residence in question while the undercover agent was waiting to complete the sale. The beeper had the telephone number for the residence stored in its memory. Defendants have charged a number of assignments of error on appeal. First, Hickey argued that his mandatory sentence of life imprisonment violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Hickey was sentenced pursuant to 21 U.S.C. § 841(b)(l)(A)(iii) which provides that a third felony drug conviction will subject a defendant to a mandatory term of life imprisonment without release. Although this circuit has considered and rejected a number of collateral attacks questioning the constitutionality of sentencing alternatives available under 21 U.S.C. § 841(b), see e.g., United States v. Williams, 962 F.2d 1218 (6th Cir.) (penalty scheme providing for a 100:1 ratio of crack or cocaine base to cocaine powder does not violate Equal Protection Clause of Fifth Amendment), cert. denied, - U.S. -, 113 S.Ct. 264, 121 L.Ed.2d 194 (1992); United States v. Pickett, 941 F.2d 411 (6th Cir.1991) (100:1 ratio of crack" } ]

[ { "docid": "22700712", "title": "", "text": "PER CURIAM: This consolidated appeal involves three district courts and three defendants: Ce dric Henderson, Jr., Donavan Barrington McClune, and Bobby Kirkendoll. Each defendant appeals the respective district court’s denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), which permits the discretionary modification of a defendant’s sentence in certain cases where the sentencing range has been subsequently lowered by the United States Sentencing Commission. The defendants each argue that the district court erred by failing to reconsider the sentencing factors set forth in 18 U.S.C. § 3553(a) when it evaluated his motion. We agree and REVERSE. FACTS AND PROCEEDINGS Amendments to the Sentencing Guidelines, which took effect on November 1, 2007, reduced the base offense level by two levels for most crack cocaine offenses. U.S. Sentencing Guidelines Manual (2007), App. C, Amend. 706. The Sentencing Commission made the amendment retroactive as of March 3, 2008. U.S. Sentencing Guidelines Manual (2007), App. C, Amend. 713. As of that date, defendants serving eligible crack cocaine-based sentences could file a motion for a sentence reduction under § 3582(c)(2), which permits the district court to “reduce the [defendant’s] term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). A. Cedric, Henderson, Jr. Cedric Henderson, Jr., pleaded guilty to one count of possession with intent to distribute 50 grams or more of cocaine base (crack cocaine) in violation of 21 U.S.C. § 841(a)(1). The applicable Guidelines range of imprisonment was 188 to 235 months and the statutory minimum sentence was ten years. Pursuant to the Government’s 18 U.S.C. § 3553(e) motion for downward departure, the district court sentenced Henderson to 100 months of imprisonment. This sentence constituted a 47% departure from the low end of Henderson’s Guidelines sentence. Following the amendment to base offense levels for crack cocaine offenses, the probation officer recalculated Henderson’s Guidelines range and determined that he was subject to an amended range of 151 to 188 months of imprisonment" }, { "docid": "23394500", "title": "", "text": "SYKES, Circuit Judge. The district court denied Monica Poole’s motion to modify her sentence pursuant to 18 U.S.C. § 3582(c)(2) on the ground that she was ineligible for a reduction. Poole appeals, arguing that she is eligible for a sentence reduction under § 3582(c)(2) because her original sentence, subsequently reduced under Rule 35(b) of the Federal Rules of Criminal Procedure, was based on a sentencing range the Sentencing Commission has since lowered — specifically, Guidelines Amendment 706 pertaining to crack cocaine sentences. We affirm. The district court lacked subject-matter jurisdiction to revisit Poole’s sentence because it was based on a statutory minimum sentence, not a range the Commission has subsequently lowered. I. Background Monica Poole pleaded guilty to one count of distributing five or more grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(l)(B)(iii). At sentencing the district court first calculated Poole’s base offense level for crack cocaine pursuant to U.S.S.G. § 2D1.1. This calculation resulted in a guidelines range of 87-108 months. However, a prior felony drug conviction subjected her to a statutory minimum sentence of 120 months. 21 U.S.C. § 841(b)(1)(B). Because the district court’s initial calculation of Poole’s guidelines range was lower than the statutory minimum sentence, the district court sentenced her pursuant to the statutorily required minimum. See U.S.S.G. § 5Gl.l(b). Nearly one year later, the government moved under Rule 35(b) to have Poole’s original sentence reduced for substantial assistance to the government. The district court granted the government’s motion and, using Poole’s statutory minimum sentence as its starting point, reduced her sentence 25 percent to 90 months. Poole later moved for a further sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2) on the basis of Guidelines Amendment 706, which lowered the base offense level for crack cocaine offenses under U.S.S.G. § 2D1.1 by two levels to ameliorate the 100:1 drug-quantity ratio between powder cocaine and crack. See U.S.S.G. app. C, amend. 706 (2007). She requested a sentence of 65 months based on a guidelines range that took Amendment 706 and her substantial-assistance reduction into account but that did not apply the" }, { "docid": "22604811", "title": "", "text": "defendant under 18 U.S.C. § 3582. United States v. Aguirre, 214 F.3d 1122, 1124 (9th Cir.2000). The Sentencing Commission promulgated Amendment 706 in response to the disparity in sentencing between offenses involving crack cocaine and powder cocaine. See generally Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 566-69, 169 L.Ed.2d 481 (2007) (describing the evolving treatment of crack and powder cocaine under the Sentencing Guidelines). Pursuant to the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207, one hundred times more powder cocaine than crack cocaine is required to trigger the same statutory minimum penalty. See 21 U.S.C. § 841(b). In setting offense levels for crack and powder cocaine, the Sentencing Commission at first adopted the same 100-to-l ratio. However, Amendment 706, which became effective on November 1, 2007, reduces this disparity by adjusting downward by two points the base offense levels assigned to various quantities of crack cocaine in the Drug Quantity Table in U.S.S.G. § 2D1.1. “As a general matter, courts may not alter a term of imprisonment once it has been imposed.” United States v. Hicks, 472 F.3d 1167, 1169 (9th Cir.2007). However, 18 U.S.C. § 3582(c)(2) creates an exception to this rule by allowing modification of a term of imprisonment if: (1) the sentence is “based on a sentencing range that has subsequently been lowered by the Sentencing Commission”; and (2) “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” As Amendment 713 applies Amendment 706 retroactively, courts may now modify a term of imprisonment where the underlying offense involves crack cocaine — but only if the two requirements of § 3582(c)(2) are satisfied in a given ease. Leniear’s motion for resentencing, based on Amendment 706, fails to satisfy both elements. Cf. United States v. Paulk, 569 F.3d 1094 (9th Cir.2009) (holding that a defendant sentenced pursuant to a statutory mandatory minimum is not entitled to a reduction of his prison sentence under Amendment 706). First, the sentencing range applicable to Leniear would have been the same even if Amendment 706 had been in place at the" }, { "docid": "18951099", "title": "", "text": "crack cocaine. See USSG Supp. App. C, Arndt. 706 (effective Nov. 1, 2007). In 2008, the Commission made that amendment retroactive. See id., Arndt. 713 (effective Mar. 3, 2008). When the Commission makes a Guidelines amendment retroactive, 18 U. S. C. § 3582(c)(2) authorizes a district court to reduce an otherwise final sentence that is based on the amended provision. Any reduction must be consistent with applicable policy statements issued by the Sentencing Commission. The relevant policy statement, USSG § 1B1.10, instructs courts proceeding under § 3582(c)(2) to substitute the amended Guidelines range while “leav[ing] all other guideline application decisions unaffected.” § 1B1.10(b)(1). Under § 3582(c)(2), a court may then grant a reduction within the amended Guidelines range if it determines that one is warranted “after considering the factors set forth in section 3553(a) to the extent that they are applicable.”* Except in limited circumstances, however, § lB1.10(b)(2)(A) forecloses a court acting under § 3582(c)(2) from reducing a sentence “to a term that is less than the minimum of the amended guideline range.” II A jury convicted petitioner Percy Dillon in 1993 of conspiracy to distribute and to possess with the intent to distribute more than 500 grams of powder cocaine and more than 50 grams of crack cocaine in violation of 21 U. S. C. § 846, possession with the intent to distribute more than 500 grams of powder cocaine in violation of § 841(a)(1), and use of a firearm during and in relation to a drug-trafficking offense in violation of 18 U. S. C. § 924(c)(1). Dillon’s convictions exposed him to a statutory sentencing range of 10 years to life for the conspiracy, 5 to 40 years for cocaine possession, and a mandatory minimum sentence of 5 years for the firearm offense, to be served consecutively to the sentence for the drug offenses. At sentencing, the District Court made additional findings of fact and concluded that Dillon was responsible for 1.5 kilograms of crack and 1.6 kilograms of powder cocaine. Under USSG § 2D1.1, those drug quantities produced a base offense level of 38. After offsetting adjustments for" }, { "docid": "23086634", "title": "", "text": "result, the prosecution did not oppose, and the court granted, a three-level reduction for acceptance of responsibility. This de crease left Gay with a total offense level of 39, which led to a guideline range of 262 to 327' months of imprisonment. The district court sentenced Gay to 262 months of imprisonment. In 2007, frustrated by the sentencing disparity between cocaine powder and cocaine base, the Sentencing Commission got creative and — with Amendment 706 — reduced the base offense level by two for most weights of cocaine base. It could do so given the statutory framework because, even after lowering the sentencing range, the base offense levels still contained within them the statutory mandatory minimum penalties. See U.S. Sentencing Guidelines Manual app. C, Amendment 706 (Nov. 1, 2007). In 2008, with Congress’ acquiescence, the Commission made the base offense level reduction retroactive through Amendment 713. U.S. Sentencing Comm’n, Supplement to the 2007 Guidelines Manual 55-56 (2008). Amendment 706 resulted in the cocaine powder-base ratio falling to about 33:1 for base offense level 38. Despite this adjustment to the sentencing guidelines, the federal drug statute continued to calculate its 5- and 10-year mandatory minimum sentences on the basis of a 100:1 ratio between cocaine powder and cocaine base. 21 U.S.C. § 841(b)(1)(A), (b)(1)(B) (2006) (current version at 21 U.S.C. § 841(b)(1)(A), (b)(1)(B) (2013)). It provided two mandatory minimum sentences: (1) 10 years for offenses involving at least 5 kilograms of cocaine powder or 50 grams of cocaine base; and (2) 5 years for offenses involving at least 500 grams of cocaine powder or 5 grams of cocaine base. Id. This changed in August 2010 when Congress enacted the Fair Sentencing Act, which reduced the statutory penalty disparity between cocaine powder and crack cocaine to an 18:1 ratio. See Fair Sentencing Act, Pub.L. No. 111-220,124 Stat. 2372 (2010). For the 10-year mandatory minimum sentence, the ratio became 5 kilograms of powder to 280 grams of base; for the 5-year mandatory minimum sentence, 500 grams of powder to 28 grams of base. U.S. Sentencing Guidelines Manual app. C, Amendment 750 (Nov. 1," }, { "docid": "18951118", "title": "", "text": "a punishment that it believed to be grossly disproportionate to the offense and, therefore, “greater than necessary” to meet the goals of our criminal justice system, 18 U. S. C. § 3553(a). The punishment Dillon received was so high, in part, because at the time of his conviction our drug laws punished crack cocaine offenses 100 times more severely than powder cocaine offenses. In 2007, as the Court explains, see ante, at 821, the United States Sentencing Commission proposed a partial fix to this disparity, lowering its Guidelines Manual* ranges for crack cocaine offenses to as high as a 20:1 ratio. See United States Sentencing Commission, Guidelines Manual Supp. App. C, Amdt. 706 (Nov. 2009) (USSG) (effective Nov. 1,2007). Pursuant to its congressional mandate, see 28 U. S. C. § 994(u), the Commission made this change retroactive for those individuals, like Dillon, who were still serving sentences for crack cocaine offenses. See USSG Supp. App. C, Amdt. 713 (effective Mar. 3, 2008). Although Dillon does not have a constitutional right to obtain the benefit of the Commission’s change, it is undisputed that he has a statutory right to do so. Under 18 U. S. C. § 3582(c)(2), a federal prisoner “who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered” by the Commission may seek a sentence reduction, but only after the court “consider[s] the factors set forth in section 3553(a),” and only “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Dillon sought such relief. His 322-month sentence was reduced to a 270-month sentence — still 1714 years more than the sentencing judge thought necessary as an initial matter. In his § 3582(c)(2) proceeding, Dillon alleged that his circumstances warranted an additional reduction in light of the fact that his sentence was “greater than necessary” to effectuate the goals of our sentencing system, § 3553(a). He also emphasized that he has been a model inmate during his 17 years in federal prison. Once again, however, the District Court felt that its hands were tied," }, { "docid": "22702498", "title": "", "text": "Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Chief Judge WILLIAMS and Judge MOTZ joined. OPINION NIEMEYER, Circuit Judge: In furtherance of its conclusion that “the 100-to-l drug quantity ratio [of cocaine powder to crack cocaine used in sentencing] significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere,” the United States Sentencing Commission adopted Amendment 706 to the Sentencing Guidelines, effective November 1, 2007. Amendment 706 amended U.S.S.G. § 2D1.1, lowering by two levels the offense levels associated with each quantity of crack cocaine, and, effective March 3, 2008, it was made retroactive. Amendment 706 has now generated thousands of motions to reduce sentences, filed under 18 U.S.C. § 3582(c)(2) (authorizing the modification of a sentence “based, on a sentencing range that has subsequently been lowered by the Sentencing Commission” (emphasis added)). The two appeals here come to us from the district court’s orders denying two such motions, one filed by Carious Gerrard Hood and the other by Corey Allen Brooks. These defendants’ convictions for crack cocaine trafficking required mandatory minimum sentences of 240 months’ imprisonment under 21 U.S.C. § 841(b)(1)(A), but in each case the district court reduced the sentence under 18 U.S.C. § 3553(e) — Hood’s to 100 months’ imprisonment and Brooks’ to 108 months’ imprisonment — to reflect the defendant’s substantial assistance to the government. Each defendant now, through his § 3582(c)(2) motion, requests a proportionate reduction of his sentence to reflect the lowering of sentences for crack cocaine offenses provided by Amendment 706. We conclude that the defendants’ sentences in these appeals were “based on” the statutorily mandated minimum sentence, not “based on a sentencing range” lowered by Amendment 706, and were reduced by the district court under 18 U.S.C. § 3553(e) only for each defendant’s substantial assistance to the government, not because of the application of any “guideline range” lowered by Amendment 706. Because Amendment 706 lowered only the crack cocaine offense levels in § 2D1.1 of the Sentencing Guidelines, it did not have the effect of lowering the defendants’ applicable sentencing ranges. Accordingly, we affirm. I" }, { "docid": "17430793", "title": "", "text": "MURPHY, Circuit Judge. While serving a sentence of 148 months for conspiracy to distribute crack cocaine, Leo Anderson moved for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on a retroactive amendment to the sentencing guidelines. He sought a sentence 29% below the bottom of his amended guideline range of 168 to 210 months. The district court granted a reduction approximately 20% below the amended guideline range to comply with U.S.S.G. § 1B1.10, the Sentencing Commission’s policy statement governing the sentence reduction process. Anderson appeals, arguing that § 1B1.10 is contrary to the Sentencing Reform Act and unconstitutional. We affirm. I. Anderson pled guilty in 2004 to conspiracy to distribute at least 50 grams of crack cocaine. See 21 U.S.C. §§ 841(a)(1), 846. His guideline range was 262 to 327 months imprisonment, but the government moved for a downward departure based on Anderson’s substantial assistance. See U.S.S.G. § 5K1.1. The district court granted the motion and sentenced him to 210 months, 20% below the bottom of his guideline range. Because Anderson had been sentenced under a mandatory guideline system, his case was remanded to the district court for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Anderson, 155 Fed.Appx. 244, 245 (8th Cir.2005) (per curiam). The district court resentenced him to 185 months, varying downward due to Anderson’s attempts to turn his life around while in prison. This resulted in a sentence approximately 29% below the bottom of the guideline range. In 2007 the Sentencing Commission reduced the base offense levels for crack cocaine offenses, and these changes were made retroactive in 2008. See U.S.S.G. App’x C (Nov. 2011) amends. 706, 713. Anderson moved for a sentence reduction under 18 U.S.C. § 3582(c)(2), which provides the district court with discretionary authority to reduce a defendant’s term of imprisonment if the original sentence was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Anderson’s amended" }, { "docid": "23238492", "title": "", "text": "Anthony Bowers on one count of conspiracy to possess, with intent to distribute, five kilograms or more of powder cocaine and fifty grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Based on his criminal history category of VI, Bowers was subject to a sentence of 360 months to life under the (then-mandatory) United States Sentencing Guidelines (“Guidelines”). Bowers pleaded guilty pursuant to an agreement under which he was to receive a sentence of only 120 months. Before sentencing, however, Bowers breached his plea agreement by leaving the country without permission, thereby subjecting himself once again to a Guidelines-range sentence. As a result of a motion under § 5K1.1 of the Guidelines, the district court in November 2000 imposed a below-Guidelines-range sentence of 262 months of imprisonment and ten years of supervised release. Bowers did not appeal or collaterally attack this sentence. In January 2008, the government filed a motion pursuant to Rule 35(b) relating to Bowers’s sentence. Meanwhile, in November 2007, the United States Sentencing Commission amended the Guidelines to reduce the sentencing disparity between crack-cocaine and powder-cocaine offenses. See U.S.S.G. SuppApp. C, Amdt. 706 (effective Nov. 1, 2007); see also Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (explaining background of this amendment). In early 2008, the Sentencing Commission declared this amendment to be retroactive. See U.S.S.G. SuppApp. C, Amdt. 713 (effective Mar. 3, 2008). Bowers, relying on these amendments, filed a separate motion pursuant to § 3582(c)(2) seeking a sentence reduction. On May 5 and 6, 2008, the district court conducted a combined hearing on the two motions. During this hearing, the court heard testimony from one of Bowers’s fellow inmates that, several months earlier, Bowers and two other inmates had violent ly attacked him and searched his anus for contraband. Three corrections officers gave corroborating testimony. Bowers, by contrast, testified that he had nothing to do with the assault and that he had reformed himself in prison, found religion, and “learned his lesson.” Bowers also proffered several friends, family members, and fellow prisoners as" }, { "docid": "20285628", "title": "", "text": "powder cocaine offenses-the Court exercised its discretion under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and imposed a sentence that reflected a 20-to-l ratio between crack cocaine and powder cocaine offenses. The Court multiplied the amount of crack cocaine for which Mr. Brooks acknowledged he was accountable (98.9 grams) by 20, yielding 1,978 grams, and then added the amount of powder cocaine (398.8 grams), yielding a total amount of powder cocaine of 2,376.8 grams. That put Mr. Brooks at Offense Level 25 (after a three-level downward adjustment for acceptance of responsibility) and Criminal History Category V, for a Guidelines sentencing range of 100 to 125 months. See Tr. at 38. Upon consideration of the factors set forth in 18 U.S.C. § 3553(a), the Court sentenced Mr. Brooks at the high end of that range (120 months) to reflect the seriousness of the offense and his “very, very serious” prior convictions. See Tr. at 35, 39. II. SECTION 3582 MOTION Mr. Brooks filed a motion to reduce his sentence based on an amendment to the Sentencing Guidelines that lowered the base offense level for crack cocaine offenses by two levels, with retroactive applicability. See U.S.S.G., Supp. to App. C, Amend. 706, 711; 3582 Mot. at 3. Under 18 U.S.C. § 3582(c)(2), the Court is authorized to reduce a term of imprisonment imposed “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2) (emphasis added). As Mr. Brooks acknowledges, however, in sentencing him the Court did not apply the crack cocaine Guidelines, but rather multiplied the amount of crack by 20 and applied the powder cocaine Guidelines. See Defs Reply to Opp. at 2-3. Under the retroactive amendment, the defendant would be at an Offense Level 27, Criminal History Category V, and his Guidelines sentencing range would be 120 to 150 months. Under the 20-to-l ratio used by the Court, he was at Offense Level 25, Criminal History Category V, with a" }, { "docid": "23086635", "title": "", "text": "this adjustment to the sentencing guidelines, the federal drug statute continued to calculate its 5- and 10-year mandatory minimum sentences on the basis of a 100:1 ratio between cocaine powder and cocaine base. 21 U.S.C. § 841(b)(1)(A), (b)(1)(B) (2006) (current version at 21 U.S.C. § 841(b)(1)(A), (b)(1)(B) (2013)). It provided two mandatory minimum sentences: (1) 10 years for offenses involving at least 5 kilograms of cocaine powder or 50 grams of cocaine base; and (2) 5 years for offenses involving at least 500 grams of cocaine powder or 5 grams of cocaine base. Id. This changed in August 2010 when Congress enacted the Fair Sentencing Act, which reduced the statutory penalty disparity between cocaine powder and crack cocaine to an 18:1 ratio. See Fair Sentencing Act, Pub.L. No. 111-220,124 Stat. 2372 (2010). For the 10-year mandatory minimum sentence, the ratio became 5 kilograms of powder to 280 grams of base; for the 5-year mandatory minimum sentence, 500 grams of powder to 28 grams of base. U.S. Sentencing Guidelines Manual app. C, Amendment 750 (Nov. 1, 2011). As seen, to reduce the disparity, Congress chose to increase the amount of cocaine base needed to meet the mandatory minimum rather than decrease the amount of powder cocaine. In response to the Fair Sentencing Act, the Sentencing Commission promulgated Amendment 750, which reduced the base offense levels for various weights of crack cocaine. See id. Specifically, as pertains to Gay’s case, it reduced from level 38 to level 36 offenses involving between 2.8 and 8.4 kilograms of cocaine base. Offenses involving more than 8.4 kilograms of cocaine base remained at base offense level 38. U.S. Sentencing Guidelines Manual § 2Dl.l(c)(l) (2013). With Congress’s ac quiescence, the Sentencing Commission applied Amendment 750 retroactively. See U.S. Sentencing Guidelines Manual app. C, Amendment 759 (Nov. 1, 2011). In view of these developments, Gay filed a motion under § 3582(c)(2) to reduce his •sentence. The district court denied Gay’s motion, concluding that he was ineligible for relief under Amendment 750 because his “sentence was based on a quantity of cocaine base (9.6 kilograms) that far exceeds the" }, { "docid": "18951098", "title": "", "text": "Ibid. Booker thus left intact other provisions of the SRA, including those giving the Commission authority to revise the Guidelines, 28 U. S. C. § 994(o) (2006 ed.), and to determine when and to what extent a revision will be retroactive, § 994(u). With respect to drug-trafficking offenses, the Sentencing Guidelines establish a defendant’s base offense level according to the type and weight of the drug. See USSG §§2Dl.l(a), (c). When the Commission first promulgated the Guidelines in 1987, it adopted the 100-to-l ratio selected by Congress in setting mandatory minimum sentences in the Anti-Drug Abuse Act of 1986, 100 Stat. 3207. Under that framework, the Commission “treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine.” Kimbrough v. United States, 552 U. S. 85, 96 (2007). The Commission later sought to alleviate the disparity produced by this ratio. After several failed attempts at reform, see id., at 99, the Commission in 2007 amended the Guidelines to reduce by two levels the base offense level associated with each quantity of crack cocaine. See USSG Supp. App. C, Arndt. 706 (effective Nov. 1, 2007). In 2008, the Commission made that amendment retroactive. See id., Arndt. 713 (effective Mar. 3, 2008). When the Commission makes a Guidelines amendment retroactive, 18 U. S. C. § 3582(c)(2) authorizes a district court to reduce an otherwise final sentence that is based on the amended provision. Any reduction must be consistent with applicable policy statements issued by the Sentencing Commission. The relevant policy statement, USSG § 1B1.10, instructs courts proceeding under § 3582(c)(2) to substitute the amended Guidelines range while “leav[ing] all other guideline application decisions unaffected.” § 1B1.10(b)(1). Under § 3582(c)(2), a court may then grant a reduction within the amended Guidelines range if it determines that one is warranted “after considering the factors set forth in section 3553(a) to the extent that they are applicable.”* Except in limited circumstances, however, § lB1.10(b)(2)(A) forecloses a court acting under § 3582(c)(2) from reducing a sentence “to a term that is less than the minimum of the amended guideline range.” II A" }, { "docid": "23579625", "title": "", "text": "HAMILTON, Circuit Judge. Brad Taylor appeals pro se the denial of his motion under 18 U.S.C. § 3582(c)(2) for a reduction of his crack cocaine sentence. The district court dismissed his motion for lack of subject matter jurisdiction. We affirm the denial of relief. We conclude that the district court had subject matter jurisdiction to consider the request, but that Taylor is not eligible for relief because the relevant retroactive amendment to the Sentencing Guidelines did not actually have the effect of lowering the sentencing range applicable to him, as required by § 3582(c)(2). This case has a lengthy history. In 2001 a jury found Taylor guilty of conspiring to distribute and to possess with intent to distribute both cocaine and cocaine base, see 21 U.S.C. § 846, and of distributing cocaine, see 21 U.S.C. § 841(a)(1). At sentencing the district court found that his offense involved 2.15 kilograms of crack cocaine, resulting at the time in a base-offense level of 38. See U.S.S.G. § 2D1.1 (2000). Although Taylor qualified as a career offender under § 4B1.1 (corresponding to an offense level of 37), the court applied the higher offense level of 38 assigned by the drug-quantity guidelines. This offense level and Taylor’s criminal-history category of VI yielded a guideline range of 360 months to life. The court sentenced him to 377 months. We affirmed his conviction and sentence. United States v. Moss, 57 Fed.Appx. 704 (7th Cir.2003). In 2004 Taylor filed a motion for relief under 28 U.S.C. § 2255. The district court denied the motion, as well as Taylor’s subsequent request for a certificate of appealability. We also denied his request for a certificate of appealability. Taylor v. United States, No. 05-4735 (7th Cir. Mar. 31, 2006). The United States Sentencing Commission then retroactively reduced the offense levels for crack cocaine offenses, effective in 2008, through Guideline Amendments 706 and 713. Taylor asked the district court to appoint counsel to help him prepare a § 3582(c)(2) motion to take advantage of the retroactive reduction. The court appointed counsel, but instead of helping Taylor file such a motion, counsel" }, { "docid": "22738680", "title": "", "text": "BRISCOE, Circuit Judge. Defendant-Appellant Patrick O. Shar-key entered a guilty plea to one count of distribution of cocaine base (i.e., “crack” cocaine) within one thousand feet of a school, in violation of 21 U.S.C. §§ 841(a)(1) and 860(a), and was sentenced to 188 months in prison. Although his plea agreement reserved his right to appeal certain determinations regarding sentencing, Sharkey did not appeal his sentence. Sharkey filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, but it was dismissed as untimely. Sharkey, proceeding pro se, now contends the district court erred by denying his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), based on the retroactive modification to the United States Sentencing Guidelines (“Guidelines”). The Guidelines, through Amendment 706, generally adjust downward by two levels the base offense level assigned to quantities of crack cocaine. Amendment 706 took effect November 1, 2007 and was made retroactive as of March 3, 2008. See U.S.S.G. App’x C Supplement, Amendment 706 (Nov. 1, 2007) (regarding 2-level reduction); U.S.S.G. App’x C Supplement, Amendment 713 (Mar. 3, 2008) (regarding retroactivity). We have jurisdiction under 28 U.S.C. § 1291 and affirm the district court. I. Procedural and Factual History In December 2002, Sharkey was indicted on multiple drug and firearms charges. He ultimately entered a plea of guilty to one count, distributing crack cocaine within one thousand feet of a school, in exchange for dismissal of the remaining counts. Prior to sentencing, a presentence report (“PSR”) was prepared, which calculated a Guideline § 2D1.1 base offense level of 33 for the amount of cocaine base, a 2-level firearm enhancement, and a 3-level acceptance of responsibility reduction, for a total offense level of 32. With Sharkey’s criminal history category of VI, the Guideline sentencing range was 210 to 262 months’ imprisonment. The PSR also recommended a finding that Sharkey was a career offender under Guideline § 4B1.1, which carried a base offense level of 34. With the 3-level reduction for acceptance of responsibility bringing his total offense level to 31, the PSR calculated a range of 188 to 235 months’" }, { "docid": "22239121", "title": "", "text": "remand, Main again pled guilty, pursuant to a plea agreement, to distributing and conspiring to distribute five or more grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The agreement specified that Main and the government had agreed, “pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C),” that “the appropriate sentence to be imposed, with regard to imprisonment, is a term of not more than eight (8) years.” (Plea Agreement ¶ 3.) The agreement further stated that Main “reserve[d] the right to argue for a downward departure.” (Plea Agreement ¶ 3.) The district court accepted Main’s guilty plea. At the subsequent sentencing hearing in February 2005, the district court determined that Main’s total offense level was 26, that his Criminal History Category was VI, and that the applicable Guideline range therefore was 120 to 150 months, and found that “the parties have agreed in accordance with [Rule 11(c)(1)(C) ] that the appropriate sentence to be imposed is a term of imprisonment of not more than eight years[,] which is 96 months.” (Sentencing Tr. 28:24-29:2, Feb. 23, 2005.) The district court then granted Main’s request for downward departures, reducing Main’s sentence by seven months for “extraordinary rehabilitation ... while in prison” and by five months for certain time Main served. (Sentencing Tr. 30:24-31:10.) The district court sentenced Main to 84 months’ imprisonment. On May 14, 2008, Main moved to reduce his sentence pursuant to section 3582(c)(2), which allows such motions by any “defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Main argued that he was eligible for a reduced sentence under U.S.S.G. § 1B1.10, effective March 3, 2008, which retroactively reduced by two levels the base offense level for crack cocaine offenses covered by U.S.S.G. § 2D1.1. See U.S.S.G. supp. to app. C, amend. 706 (2007) (amending the drug quantity table for U.S.S.G. § 2D1.1); U.S.S.G. supp. to app. C, amend. 713 (2007) (retroactively applying § 2D1.1). The district court denied Main’s motion on the basis that the" }, { "docid": "14931336", "title": "", "text": "PER CURIAM: Ronnie Williams appeals a district court order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c). Williams argues that he is entitled to a reduction of his sentence pursuant to Amendment 706 of the Sentencing Guidelines, which provides for a two-level reduction in the base offense level for crack-cocaine-related offenses. We affirm. I In 2004, a federal grand jury indicted Williams on two charges: Count 1 alleged that Williams participated in a conspiracy to possess with intent to distribute fifty grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A); and Count 9 alleged that Williams used a communication facility to commit possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 843(b). The Sentencing Guidelines range for these crimes was 360 months’ to life imprisonment. Williams pleaded guilty to these charges pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) agreement. Rule 11(c)(1)(C) allows the government to recommend a specific sentence or sentencing range for a defendant, even if this sentence is not within the guidelines range. Under Williams’s Rule 11(c)(1)(C) agreement, the Government stipulated that a sentence of 192 months was appropriate. The district court accepted the plea agreement and sentenced Williams to 192 months’ imprisonment. In 2007, the United States Sentencing Commission amended the Sentencing Guidelines to reduce the base offense level for crack-cocaine-related offenses. The purpose of the amendment was to reduce the sentencing disparity between crack- and powder-cocaine offenses. The amendment applies retroactively to sentences handed down before the enactment of the amendment. In response to the 2007 amendment, the Eastern District of Louisiana established a Cocaine Base Retroactivity Screening Committee to review the cases of all defendants whose sentences could potentially be affected by the revision to the crack-cocaine guidelines. The Committee reviewed Williams’s case and concluded that, under the new guidelines, his sentence range would be 324 to 405 months. Williams filed a pro se motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). Williams asserted that his sentence of 192 months should be reduced to 172 months, which" }, { "docid": "22665341", "title": "", "text": "Vacated and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge KING and Judge AGEE joined. OPINION DIANA GRIBBON MOTZ, Circuit Judge: In 1997, after pleading guilty to conspiracy to distribute powder and crack cocaine, Orrandy Goodwyn received a 264-month prison sentence. Eleven years later, relying on 18 U.S.C. § 8582(c)(2) (2006) and the retroactive crack cocaine amendment to the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”), Goodwyn moved for a reduction of his sentence to time served. The district court granted the motion in part, reducing Goodwyn’s term of imprisonment by two years, to 240 months. More than seven months later, Goodwyn asked the court to reduce his sentence further. The court treated the request as a motion for reconsideration, which it granted, again reducing Goodwyn’s sentence by two years, to 216 months. For the reasons that follow, we hold that the district court lacked the authority to grant the motion for reconsideration. I. Goodwyn pled guilty to conspiracy to distribute powder and crack cocaine, in violation of 21 U.S.C. § 846(a)(1) (2006). On March 18, 1997, the district court sentenced him to 264 months’ imprisonment and five years of supervised release. On March 24, 2008, Goodwyn filed a pro se motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) and the crack cocaine amendment to the Guidelines. U.S.S.G. app. C, amends. 706, 711. Section 3582(c)(2) permits sentence modification “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” Id. § 3582(c)(2). Goodwyn’s conspiracy conviction involved an otherwise unspecified drug quantity in excess of 1.5 kilograms of cocaine base, which, at the time, triggered a base offense level of 38. The Sentencing Commission subsequently lowered the sentencing range applicable to his offense conduct and applied the amendment retroactively. U.S.S.G. app. C, amends. 706, 711. Therefore, the district court had the discretion, but not the obligation, to reduce Goodwyn’s sentence on this ground. Id. § 1B1.10. In his motion, which the Government opposed, Goodwyn highlighted his" }, { "docid": "22843090", "title": "", "text": "OPINION OF THE COURT BARRY, Circuit Judge. Defendant Brett Styer appeals the District Court’s June 6, 2008 order denying his motion pursuant to 18 U.S.C. § 3582(c) for modification of his sentence in light of the recent retroactive amendment to the crack cocaine Sentencing Guidelines. See 18 U.S.C. § 3582(c); U.S.S.G. § 1B1.10. We will affirm. I. Pursuant to a written plea agreement, Styer pled guilty on November 20, 2002 to a 13-count Superceding Information charging him with distribution of more than five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); distribution of more than 5 grams of cocaine base within 1,000 feet of a school zone, in violation of 21 U.S.C. § 860; and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Styer’s original guideline range was 151— 188 months, based on an offense level of 31 and a criminal history category of IV. The District Court imposed a within-guidelines sentence of 180 months incarceration on May 5, 2003. By letter of May 21, 2008, the Federal Community Defender Office for the Eastern District of Pennsylvania, as part of a screening committee that also includes members of the United States Attorney’s Office and the Probation Office, notified the District Court that Styer was eligible for a retroactive reduction of his sentence by virtue of the recent amendment to the Sentencing Guidelines regarding the applicable range for crack cocaine offenses. By order of June 6, 2008, the Court concluded that although Styer was eligible for a reduction, “consideration of the § 3553(a) factors and the safety and welfare of the public make reduction of Styer’s sentence inappropriate.” (App. 50.) Styer then formally moved for a reduction of sentence, citing, in addition to the amendment, his commendable conduct post-conviction. The Court again refused to reduce the sentence, referring to its order of June 6, 2008 and the justifications articulated therein. (A. 74.) Styer timely appealed that decision. II. Effective November 1, 2007, the United States Sentencing Commission adopted Amendment 706, which modified the guideline ranges applicable to crack cocaine" }, { "docid": "22140670", "title": "", "text": "sentenced Black to 120 months’ imprisonment, the statutory minimum. More than three years later, Congress enacted the Fair Sentencing Act of 2010 (“FSA”), Pub.L. No. 111-220, 124 Stat. 2372, in response to extensive criticism about the disparity in sentences between crack cocaine offenses and powder cocaine offenses. See Dorsey v. United States, — U.S. -, 132 S.Ct. 2321, 2328-29, 183 L.Ed.2d 250 (2012). Among other things, the FSA reduced the statutory minimum sentences for crack cocaine offenses by increasing the quantity of crack cocaine necessary to trigger the mínimums — raising the amount from 15 grams to 28 grams for the 5-year minimum sentence, and from 50 grams to 280 grams for the 10-year minimum sentence. See FSA § (2)(a). The Act left the statutory minimum sentences for powder cocaine in place. The effect of the changes was to reduce the sentencing disparity between crack cocaine offenses and powder cocaine offenses by-lowering the crack-to-powder ratio from 100-to-l to 18-to-l. The FSA also directed the Sentencing Commission to conform the Sentencing Guidelines to the- new statutory mínimums “as soon practicable.” Id. § 8. The Sentencing Commission thereafter promulgated amendments to the Guidelines, reducing the recommended sentencing ranges to levels consistent with the FSA, to be applied retroactively. See U.S.S.G.App. C Amends. 750, 759 (2011). Comments to the Guidelines, however, explain that retroactive amendments do not alter statutory minimum terms of imprisonment. See U.S.S.G. § 1B1.10, cmt. n. 1(A). On October 18, 2012, Black filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), which allows for a sentence reduction “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” Black claimed that because the FSA had lowered the statutory minimum for the amount of crack cocaine for which he was accountable from 120 months’ imprisonment to 60 months’ imprisonment and the Sentencing Commission had, as required by the FSA, reduced its recommended sentencing ranges for crack cocaine to the same extent, his sentence should be reduced accordingly. The district" }, { "docid": "20381183", "title": "", "text": "GRIFFITH, Circuit Judge: Appellant Brian Davis was sentenced to prison for crimes involving powder and crack cocaine before Congress and the Sentencing Commission took steps to reduce the disparity in sentencing ranges between the two. Unfortunately for Davis, these efforts were directed at crimes involving lesser amounts of cocaine than his. In a suit that seeks declaratory relief and possibly damages, Davis claims that these efforts violate the Equal Protection Clause because they do not reach his crimes. This appeal does not take up the merits of Davis’s claims, but their form. The district court dismissed his suit on the ground that the only relief available to Davis is in habeas. For the reasons set forth below, we reverse. I For years, the Sentencing Guidelines treated one gram of cocaine base, commonly known as “crack cocaine,” the same as one hundred grams of powder cocaine. See Dorsey v. United States, — U.S. -, 132 S.Ct. 2321, 2327-28, 183 L.Ed.2d 250 (2012). This 100-to-l ratio came in for heavy criticism from many quarters, and both Congress and the Sentencing Commission took steps to reduce the sentencing disparities it created. Id. at 2328-29. In 2007, the Commission issued Amendment 706, which lowered base offense levels for crimes involving less than 4.5 kg of crack cocaine. U.S. Sentencing Guidelines Manual amend. 706 (2011). Then, in response to the Fair Sentencing Act of 2010, Pub.L. No. 111-220, § 2(a), 124 Stat. 2372, 2372, the Commission issued Amendment 750, which reduced the ratio to 18-to-l for crimes involving less than 8.4 kg of crack cocaine. U.S. Sentencing Guidelines Manual app. C, amend. 748 (temporarily reducing the ratio); id., amend. 750 (making Amendment 748 permanent). The Commission made both amendments retroactive, U.S.S.G. § lB1.10(c), allowing inmates convicted based on the old sentencing ranges to seek discretionary sentence reductions under 18 U.S.C. § 3582(c)(2). In 1993, Davis was convicted of conspiracy to possess with intent to distribute and the distribution of powder and crack cocaine. The sentencing court assigned him a base offense level of 42, which at the time applied to offenses involving 15 kg or" } ]

[ { "docid": "8062776", "title": "", "text": "water.” But full (or pretty full) publication of the grounds for doubting a source tends to rebut a claim of malice, not to estabhsh one. See Tavoulareas, 817 F.2d at 788 n. 35. We are not, of course, saying that one may altogether shield a defamation simply by including the source’s reputation as a liar. Here Esquire supphed an answer of sorts to the question of why, knowing Ben-Menashe’s flaws, they still saw fit to pass his accusations on to its readers. Editor William Blythe approved addition of the phrase, “Yet it’s almost impossible to dismiss him,” directly after the recitation of Ben-Menashe’s vulnerabilities. Explaining the decision, he testified, ‘We wouldn’t have used him as a source unless we thought he had some knowledgeability_ We ... knew that he ... was the [sic; “a”?] source of the Iran-Contra story, and certainly that had cheeked out, and also that Congress was investigating Ari Ben-Menashe’s charges and using him as a witness.” Esquire’s editor-in-chief, in the course of elaborating on his denial that he “knew that what Ben-Menashe was saying was as likely to be false as it was to be true,” also pointed to Ben-Menashe’s apparent vindication in Iran-Contra. And the editors relied on Unger’s record; he had worked with Esquire editor David Hirshey on two earlier pieces, and Hirshey had found him “exemplary.” Reliance on a reporter’s reputation can indeed show a lack of actual malice by a publisher. See Speer v. Cutaway Newspapers, Inc., 828 F.2d 475, 478 (8th Cir.1987); McManus v. Doubleday & Co., 513 F.Supp. 1383, 1390 (S.D.N.Y.1981). Cf. Washington Post Co. v. Keogh, 365 F.2d 965, 971-72 (D.C.Cir.1966) (exploring difficulties in using writer’s questionable reputation against the publisher). McFarlane does not dispute the validity of these bases for Esquire’s going forward (though he does, of course, assert Esquire’s allegedly inadequate attention to countervailing negatives). As to Ben-Menashe’s being interviewed by congressional staffers, we have in the past given weight to the fact that a source told congressional investigators the same story that he told the defendant, under circumstances where lying could have serious consequences. See Tavoulareas," } ]

[ { "docid": "18097571", "title": "", "text": "paragraphs of the block quote, the lack of one hardly indicates that defendant “in fact entertained serious doubts as to the truth of his publication.” St Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). As will become clear in the discussion below, defendant was often sloppy in his reporting, either omitting ellipses, slightly misquoting the underlying source, or failing to put a citation in the appropriate place. But none of the errors misrepresent the substance of the source material or mislead the reader. As many courts considering public figure defamation cases have concluded, sloppiness is not evidence of actual malice. Esquire Magazine, 74 F.3d at 1306 (“this ... seems as consistent with linguistic muddle as with reckless disregard, and in context not enough, even in conjunction with other evidence, to show actual malice by Esquire editors”); McFarlane v. Sheridan Square Press, 91 F.3d 1501, 1515 (D.C.Cir.1996) (“the conflict is so narrow that it appears to reflect only sloppiness and a slight over- generalization, not deceit, on the part of Schaap”); Lohrenz v. Donnelly, 228 F.Supp.2d 25, 55 (D.D.C.2002), aff'd 350 F.3d 1272 (D.C.Cir.2003) (“The Court will not impose liability for mere factual error — an everyday occurrence in journalism' — unless those errors rise to the level of circumstantial evidence of ‘actual malice.’ ”). Here, for the reasons explained below, none of defendant’s errors “rise to the level of circumstantial evidence of ‘actual malice.’ ” Plaintiffs also contend that the block quote that begins “Kharazi told me ...” is unsupported by any citation. Pis.’ Surreply at 4. The preceding paragraph, however, also contains a block quote and a citation to a document published in the Washington Post. The “Kharazi told me ...” block quote comes from that same document. Hence, defendant merely failed to insert an “Id.” citation after the second block quote. But he did not invent the quotation out of thin air, rely on an unverifiable anonymous source, or misleadingly doctor an underlying source. Hence, the lack of an “id.” does not indicate actual malice. Similarly, plaintiffs argue that the sentence “Then," }, { "docid": "8820661", "title": "", "text": "does not constitute actual malice. See St. Amant v. Thompson, 390 U.S. at 730-31, 88 S.Ct. 1323; Marcone v. Penthouse Int’l Magazine for Men, 754 F.2d 1072, 1089 (3d Cir.1985). The Tuckers assert that Luscombe avoided the truth by relying on biased sources while ignoring the Tuckers’ news release, which explained the import of their Complaint. Although the Supreme Court has held that purposeful avoidance of the truth may support a claim of actual malice, the evidence here falls short. In Harte-Hanks, the Court held that there was sufficient evidence of actual malice where, among other things, a reporter failed to interview a key witness to events being reported in a story, and the circumstances suggested that this was done for fear that the witnesses’ statement might contradict the story the paper was committed to running. See 491 U.S. at 682-83, 109 S.Ct. 2678. Likewise, in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), the Court found actual malice when the Saturday Evening Post failed to make adequate investigative efforts in the face of notification that the report they were about to print was false. Id. at 169-70, 87 S.Ct. 1975. The element present in Harte-Hanks and Butts but lacking here is evidence from which a reasonable jury could infer that Luscombe doubted the veracity of her story. See Harte-Hanks, 491 U.S. at 692, 109 S.Ct. 2678. The Tuckers assert that the service of the First Amended Complaint on Time-Warner, Inc., the parent corporation of Time, Inc., which publishes Time magazine and employs Luscombe, should have put Luscombe on notice that the Tuckers did not seek recovery for injury to their sex life. This argument is far-fetched. Time-Warner, Inc., a huge media and entertainment conglomerate, was served because it was one of the original defendants due to its alleged connection with Interscope Records. There is no evidence that Luscombe or anyone else actually involved with the “Shakur Booty” article was given or read the First Amended Complaint, and unlike Fischbein, neither Luscombe nor anyone else employed by Time magazine was named as a" }, { "docid": "18222319", "title": "", "text": "also Celle, 209 F.3d at 181 (“A public figure seeking recovery in a libel action against a media defendant must establish the falsity of the defamatory statements.”). As to actual malice: Despite its name, the actual malice standard does not measure malice in the sense of ill will or animosity, but instead the speaker’s subjective doubts about the truth of the publication. If it cannot be shown that the defendant knew that the statements were false, a plaintiff must demonstrate that the defendant made the statements with reckless disregard of whether they were true or false. The reckless conduct needed to show actual malice is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing, but by whether there is sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Church of Scientology, 238 F.3d at 174; see also Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (“Actual malice ... should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will.”); Sack, supra, § 5.5.1.1, at 5-68 (actual malice “relates to whether the defendant published without believing the truth of the publication”). The actual malice showing “must be made with ‘convincing clarity,’ or, in a later formulation, by ‘clear and convincing proof.’ ” Phila. Newspapers v. Hepps, 475 U.S. 767, 773, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) (internal citations omitted). The Supreme Court has identified several factors as relevant to a finding of actual malice: (1) whether a story is fabricated or is based wholly on an unverified, anonymous source, (2) whether the defen dant’s allegations are so inherently improbable that only a reckless person would have put them in circulation, or (3) whether there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. Church of Scientology, 238 F.3d at 174 (citing St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 20" }, { "docid": "18499855", "title": "", "text": "is measured neither by reasonably prudent conduct, Harte-Hanks Commc’n, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989), nor an industry’s professional standards, Howard, 294 F.3d at 252; rather, it is wholly subjective, St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Levesque does not suggest that the defendants actually knew the Plagman article provided false information. Thus, he must show “sufficient evidence to permit the conclusion that the defendants] in fact entertained serious doubts as to the truth of’ the Plagman article and the statements it attributed to Levesque. Id. Because direct evidence of actual malice is rare, it may be proved through inference, Bose Corp., 692 F.2d at 196, and circumstantial evidence, Connaughton, 491 U.S. at 668, 109 S.Ct. 2678. Recklessness amounting to actual malice may be found where a publisher fabricates an account, makes inherently improbable allegations, relies on a source where there is an obvious reason to doubt its veracity, or deliberately ignores evidence that calls into question his published statements. Connaughton, 491 U.S. at 684-85, 109 S.Ct. 2678; St. Amant, 390 U.S. at 732, 88 S.Ct. 1323. See Hunt v. Liberty Lobby, 720 F.2d 631, 643 (11th Cir.1983) (finding actual malice where the investigation was “grossly inadequate,” the story was not “hot news,” and the neutrality of the source was dubious); Bose Corp., 692 F.2d at 196 (noting that a court should consider the thoroughness and methodology of a publisher’s preparation and the expertise of its authors); but see St. Amant, 390 U.S. at 733, 88 S.Ct. 1323 (“Failure to investigate does not in itself establish bad faith.”); McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1511 (D.C.Cir.1996) (“[A]ctual malice may be inferred from an author’s or publisher’s inability to corroborate a story only when, in attempting to corroborate, he encounters persuasive evidence that contradicts the allegation.”). Levesque contends that the defendants’ failure to corroborate the fabricated quotes from the Plagman article coupled with incredulous statements during the cablecast (e.g., “I hope we’re not being duped,” and “I thought this was a joke”)" }, { "docid": "15598509", "title": "", "text": "this evidence, the Supreme Court found the record insufficient to support a finding of actual malice. Before evaluating the specific record before it, the St. Amant Court provided examples of the kind of proof that would likely support a finding of actual malice. The examples fell into three general categories: evidence establishing that the story was (1) “fabricated”; (2) “so inherently improbable that only a reckless man would have put [it] in circulation”; or (3) “based wholly on an unverified anonymous telephone call” or some other source that the defendant had “obvious reasons to . doubt.” 390 U.S. at 732, 88 S.Ct. at 1326. After setting forth these illustrative examples, the Court held that the evidence before it, by comparison, was clearly inadequate. St. Amant’s failure to investigate was deemed not indicative of actual malice, inasmuch as the plaintiff had not proven “a low community assessment of [the source’s] trustworthiness or unsatisfactory experience with him by St. Amant.” Id. at 733, 88 S.Ct. at 1326. The Court also found support for its decision in evidence tending to show that St. Amant published the charge in good faith, including St. Amant’s testimony that he had verified other aspects of his source’s information and evidence that the source had sworn to his answers in the presence of newsmen. 2. Application of the Legal Standards As the District Court correctly observed in the case at hand, the Supreme Court’s reasoning and result in St. Amant are instructive for inferior tribunals in attempting faithfully to apply the “serious doubt” test. 567 F.Supp. at 656. The examples provided there of when a jury may reasonably infer actual malice from circumstantial evidence are by no means exhaustive, but, as numerous courts have recognized, constitute useful benchmarks for lower courts to employ in determining whether a record is sufficient to sustain a finding of constitutional malice. See, e.g., Marcone v. Penthouse International Magazine For Men, 754 F.2d 1072, 1089-90 (3d Cir.), cert. denied, _ U.S. _, 106 S.Ct. 182, 88 L.Ed.2d 151 (1985); Hunt v. Liberty Lobby, 720 F.2d 631, 643-46 (11th Cir.1983). When the entire record" }, { "docid": "19861842", "title": "", "text": "the Court explained how this burden is to be applied to a case such as this: Applying these rules to the case before us, the compulsory disclosure issue is drawn into clearer focus. Where there is a concrete demonstration that the identity of defense news sources will lead to persuasive evidence on the issue of malice, a District Court should not reach the merits of a defense motion for summary judgment until and unless the plaintiff is first given a meaningful opportunity to cross-examine those sources, whether they be anonymous or known. For only then can it be said that no genuine issue remains to be tried. Thus, if, in the course of pretrial discovery, an allegedly libeled plaintiff uncovers substantial evi dence tending to show that the defendant’s published assertions are so inherently improbable that there are strong reasons to doubt the veracity of the defense informant or the accuracy of his reports, the reasons favoring compulsory disclosure in advance of a ruling on the summary judgment motion should become more compelling. Similarly, where pretrial discovery produces some factor which would support the conclusion that the defendant in fact entertained serious doubt as to the truth of the matters published, identification and examination of defense news sources seemingly would be in order, and traditional summary judgment doctrine would command pursuit of further discovery prior to adjudication of a summary judgment motion. The point of principal importance is that there must be a showing of cognizable prejudice before the failure to permit examination of anonymous news sources can rise to the level of error. Mere speculation or conjecture about the fruits of such examination simply will not suffice. Id. at 994 (emphasis supplied). Applying this standard, the Court upheld the summary judgment for the defendant because, aside from his own statement, the plaintiff produced no evidence that the defendant entertained serious doubts about the truth of the article or that the story was inherently improbable. Like the plaintiff in Cervantes, Mr. Schultz has produced no evidence that the article in question was inherently improbable or that the Reader’s Digest published" }, { "docid": "8493711", "title": "", "text": "prevail on a defendant’s motion to dismiss and then to engage in further discovery on the issue.”). “Although actual malice is subjective, a court typically will infer actual malice from objective facts,” understanding that a defendant in a defamation action will rarely admit that he published the relevant statements with actual malice. Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 183 (2d Cir.2000) (quotation marks omitted). And of course whether actual malice can plausibly be inferred will depend on the facts and circumstances of each ease. For example, a plaintiff may allege that “a story [was] fabricated by the defendant” if the defendant provides no source for the allegedly defamatory statements or if the purported source denies giving the information. St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Or the plaintiff may point to the fact that the allegedly defamatory statements were “based wholly on an unverified anonymous telephone call” or were published despite “obvious [specified] reasons to doubt the veracity of the informant or the accuracy of his reports” or despite the “inherently improbable” nature of the statements themselves. Id. In practice, requiring that actual malice be plausibly alleged has not doomed defamation cases against public figures. To the contrary, district courts in and out of our Circuit have inferred actual malice at the pleading stage from allegations that referred to the nature and circumstances of the alleged defamation or previous dealings with the defendant. See, e.g., Tiversa Holding Corp. v. LabMD, Inc., Civ. A. No. 13-1296, 2014 WL 1584211, at *7 (W.D.Pa. Apr. 21, 2014); Lynch v. Ackley, Civ. No. 3:12CV537 (JBA), 2012 WL 6553649, at *9 (D.Conn. Dec. 14, 2012); Ciemniecki v. Parker McCay P.A., Civ. No. 09-6450 (RBK/KMW), 2010 WL 2326209, at *14 (D.N.J. June 7, 2010). Relying on Boyd v. Nationwide Mutual Insurance Company, which was decided prior to Iqbal and Twombly, Biro also argues that he was entitled to proceed to discovery because he alleged “facts suggestive enough to warrant discovery, even where those facts alone would not establish a cause of action for defamation.” 208" }, { "docid": "1151844", "title": "", "text": "indication the Atlantic Monthly exercised actual malice in publishing Lando’s article. The gravamen of Herbert’s claim is that the magazine, by failing to further investigate the charges made by Lando against Herbert, exercised actual malice by publishing an article it knew contained false statements, or recklessly disregarded the possible falsity of the publication. We reiterate, however, that a finding of actual malice cannot be predicated merely on a charge that a reasonable publisher would have further investigated before publishing. St. Amant v. Thompson, supra, 390 U.S. at 731, 88 S.Ct. at 1325. Rather, a public figure defamation plaintiff must show either that the publisher actually entertained serious doubts about the veracity of the publication, or that there are “obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” Id. (emphasis added). In light of this heavy burden of proof, the purported evidence of actual malice cited by Herbert is unconvincing. Herbert claims, for example, that the editors were aware that Lando had once expressed hostility to Herbert and knowledge of this confrontation should have raised “serious doubts” in their minds about the accuracy of Lando’s article. In fact, however, the editors, alerted to the existence of the hostile encounter between Herbert and Lando, encouraged Lando to include a description and explanation of the incident in his article, which Lando did. These actions are indications of responsible editorial behavior, not actual malice. See Food-Science Corp. v. McGraw-Hill, 592 F.Supp. 362 (D.Vt.1984). Moreover, Lando’s animosity towards Herbert, while putting the Atlantic on notice, does not in itself establish the article was false or that the editors should have known any part of it was false. Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir.1977), cert. denied, 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977). Herbert also cites as evidence of actual malice the magazine’s post-publication receipt of several documents refuting Lando’s version of Herbert’s experiences. These documents include a nine-page “bill of discrepancies” submitted to the Atlantic by Herbert’s literary agent, in a form unsuitable for publication; a poorly written article by a Tennessee reporter supporting" }, { "docid": "15598510", "title": "", "text": "tending to show that St. Amant published the charge in good faith, including St. Amant’s testimony that he had verified other aspects of his source’s information and evidence that the source had sworn to his answers in the presence of newsmen. 2. Application of the Legal Standards As the District Court correctly observed in the case at hand, the Supreme Court’s reasoning and result in St. Amant are instructive for inferior tribunals in attempting faithfully to apply the “serious doubt” test. 567 F.Supp. at 656. The examples provided there of when a jury may reasonably infer actual malice from circumstantial evidence are by no means exhaustive, but, as numerous courts have recognized, constitute useful benchmarks for lower courts to employ in determining whether a record is sufficient to sustain a finding of constitutional malice. See, e.g., Marcone v. Penthouse International Magazine For Men, 754 F.2d 1072, 1089-90 (3d Cir.), cert. denied, _ U.S. _, 106 S.Ct. 182, 88 L.Ed.2d 151 (1985); Hunt v. Liberty Lobby, 720 F.2d 631, 643-46 (11th Cir.1983). When the entire record in this case is scrutinized in light of St. Amant and other governing precedents, it is clear beyond cavil that Judge Gasch’s decision to grant j.n.o.v. was fully justified. Tavoulareas seeks to support the jury finding of actual malice on the basis of both evidence generic to the entire article, such as managerial pressure to produce stories, and evidence relating more specifically to various statements in the article. We turn first to the evidence of actual malice relating to the single remaining statement in the article that may be actionable. a. Personally Urged.” It is undisputed that Comnas was the sole source for the Post’s allegation that Tavoulareas “personally urged” that Peter be included as an equity partner in Atlas. Plaintiff contends that reliance on Comnas was evidence of the Post defendants’ actual malice inasmuch as the record supports the conclusion that Comnas was an obviously unreliable source. Our examination of the record, however, leads us to agree completely with the District Court’s contrary conclusion that “reliance upon George Comnas as a primary source does" }, { "docid": "3895990", "title": "", "text": "of the information reported in the Daily Ledger. In her deposition, Dukette flatly denied speaking to the newspaper, and also claimed she could not recall speaking about Beauchamp’s case with Curtis Kin-man, who was quoted as the source of the article. She conceded, however, that she would have told Kinman about Beau-champ’s case if he asked her for the information, and Beauchamp asserts that the inferences that could be drawn from the concession suggest that Dukette may have spoken to Kinman. But even if it can be inferred that Dukette was the source, summary judgment still was appropriate because Beauchamp’s claim fails as a matter of law. In Indiana, a private individual bringing a defamation action in cases where the alleged defamatory statement is a matter of public or general concern, such as this one, see id. at 774-75, must prove “actual malice,” meaning that the statement was published with knowledge that it was false or made with a reckless disregard for the truth. Journal-Gazette Co. v. Bandido’s, Inc., 712 N.E.2d 446, 452 (Ind.1999) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). To prove that a statement was published with a reckless disregard for the truth, a defamation plaintiff must identify sufficient evidence permitting the conclusion that the defendant in fact entertained serious doubts as to the truth of the statement. Poyser v. Peerless, 775 N.E.2d 1101, 1107 (Ind.Ct.App.2002). “Reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.” Journal-Gazette, 712 N.E.2d at 456 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). The article reported that Beau-champ had been arrested for rape and other crimes; that the arrest came after Beauchamp attacked a “Noblesville woman” in her home; and that the police believed that Beauchamp was involved in other crimes and “desperately” wanted information from the public. Although in hindsight some of these statements may or may not have been true, there is nothing here suggesting that when uttered Duk-ette entertained doubts" }, { "docid": "19861838", "title": "", "text": "the story at the time it was published. Furthermore, the deposition of Mr. Velie, during which counsel for the plaintiff spent a great deal of time attempting to discover the identity of these confidential sources, discloses nothing that would indicate that the confidential informants provided information contrary to that reported in the article. In fact, the questioning at the deposition clearly shows that the informant confirmed or was the source for much of the information contained in the article. Furthermore, although Velie’s deposition makes it clear that Schultz’s name was mentioned by at least one informant his testimony also establishes that the informant provided no information regarding the alleged libelous statement in this case; that being that Hoffa believed that Schultz was one of the persons he was to meet. In addition, Velie states in his deposition that no one, including his sources, ever told him that Schultz did not have a scheduled meeting with Hoffa. Thus, contrary to the plaintiff’s assertions, it is apparent that dis closure of the identity of the sources and the information they provided would not give rise to any inference that Velie or anyone at Reader’s Digest should have suspected that the story was false. Based on this, the Court is of the opinion that the defendant’s motion for summary judgment shall be granted without ordering disclosure of the identity of confidential sources. Such disclosure is clearly unnecessary in this case, and while the information may not be subject to a constitutional or evidentiary privilege, public policy is best served by protecting against the unnecessary disclosure of a reporter’s confidential sources. The Court’s ruling is supported by Cervantes v. Time, Inc,, 464 F.2d 986 (8th Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257 (1973), a ease which involved an almost identical fact situation. In Cervantes, the defendant published an article which alleged that the plaintiff, the mayor of St. Louis, had ties to the underworld. As a public official, the plaintiff was required to show malice in order to prevail. Pretrial discovery disclosed that most of the story was" }, { "docid": "18499854", "title": "", "text": "Levesque for the response to the April 11 incident and emphasized several times two false and particularly ridiculous quotations which they attributed to Levesque, “ham is not a toy” and a comparison of the incident to Mogadishu. The attribution of these comments to Levesque coupled with the defendants’ “laughter tinged with contempt,” Powers v. Durgin-Snow Pub. Co., 154 Me. 108, 144 A.2d 294, 296 (1958), encouraged viewers to form negative conclusions about Levesque, thus tending to harm his reputation. Therefore, we agree with the district court that a genuine issue of material fact exists as to whether the statements were defamatory. B. Actual Malice A public official advancing a defamation claim must show “that the [challenged] statement was made with a high degree of awareness of ... probable falsity.” Bose Corp., 692 F.2d at 195 (internal quotations and citation omitted). In other words, the defendant must act either •with actual knowledge of the falsity or with reckless disregard for the truth. New York Times Co., 376 U.S. at 279-80, 84 S.Ct. 710. Actual malice then is measured neither by reasonably prudent conduct, Harte-Hanks Commc’n, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989), nor an industry’s professional standards, Howard, 294 F.3d at 252; rather, it is wholly subjective, St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Levesque does not suggest that the defendants actually knew the Plagman article provided false information. Thus, he must show “sufficient evidence to permit the conclusion that the defendants] in fact entertained serious doubts as to the truth of’ the Plagman article and the statements it attributed to Levesque. Id. Because direct evidence of actual malice is rare, it may be proved through inference, Bose Corp., 692 F.2d at 196, and circumstantial evidence, Connaughton, 491 U.S. at 668, 109 S.Ct. 2678. Recklessness amounting to actual malice may be found where a publisher fabricates an account, makes inherently improbable allegations, relies on a source where there is an obvious reason to doubt its veracity, or deliberately ignores evidence that calls into question his published" }, { "docid": "8062774", "title": "", "text": "Ben-Menashe transcripts and the published article’s accounts of his claims. Thus, as we shall see, McFarlane is driven largely to rely on Esquire’s alleged distortions of what Richardson had to say. McFarlane’s contentions that Esquire had actual malice comprise four basic points. First, he suggests that Esquire editors not only had reasons to doubt Ben-Menashe’s truthfulness but also in fact doubted it—so much so that their decision to publish without further corroboration showed malice. Second, McFarlane claims that Esquire either knowingly, or with reckless disregard, participated in Unger’s (alleged) fabrication of a “pedigree” for Ben-Menashe in the form of an endorsement by Elliot Richardson. Third, McFarlane suggests that general aspects of Esquire’s presentation of the article—segment headings, promotional blurbs elsewhere in the magazine, and the yellow highlighting of certain passages—add to the “defamatory sting” of the specific passage on McFarlane. Finally, McFarlane says that Esquire editors fabricated the article’s statement that he had denied comment. We review these points in turn, recognizing that McFarlane is entitled to an aggregate consideration of all of these claims—with the evidence construed most favorably to him—to see if he has met his burden. Tavoulareas, 817 F.2d at 794 n. 43. 1. Reasons to doubt the credibility of Benr-Menashe Ben-Menashe is the source for many of the details in “October Surprise,” including the ones in the passage under attack in this case. Several of Unger’s sources made clear to him their belief that Ben-Menashe was a liar, and Esquire does not deny its awareness of these views; it couldn’t, as the article passed a substantial chunk of them through to the readers. The article directly quotes a former CIA officer and a Washington Post journalist as calling him, respectively, a “liar” and a “con man.” It notes that when he took a he detector test he “failed miserably,” and it quotes an ABC News producer as saying that in the he detector test Ben-Menashe “goes way off the chart on ah relevant questions. My theory is that a lot of what he says is true, but that Ari exaggerates his own role and muddies the" }, { "docid": "3492373", "title": "", "text": "S.Ct. 710, 11 L.Ed.2d 686 (1964). The plaintiff can meet this burden by showing either that the defendant knew his statements were probably false, or that he disregarded obvious warning signs of falsity. Masson v. New Yorker Magazine, Inc., 960 F.2d 896, 900 (9th Cir.1992). This burden must be satisfied by clear and convincing evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Flowers alleged in her complaint that defendants knew that their statements were false or acted with reckless disregard of the truth. Am. Compl. ¶ 30. If Flowers can prove this claim by clear and convincing evidence, then she is entitled to recover. One who repeats what he hears from a reputable news source, with no individualized reason external to the news report to doubt its accuracy, has not acted recklessly. See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) (“[F]ailure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard.”). But if someone knows that the news story is false, he can’t sanitize his republication by purporting to rely on the news source. Nor can he claim immunity if he has conflicting information from another source and recklessly disregards it. See id. (“In a case ... involving the reporting of a third party’s allegations, ‘recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.’ ” (quoting St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968))). Defendants argue that “reliance on reports of reputable news organizations cannot constitute actual malice as a matter of law.” Appellees’ Br. at 57. We agree with their statement of the rule, but find it inapplicable to them at this early stage in the proceedings. Defendants were not uninvolved third parties who clearly lacked access to the facts behind the published reports. If they knew that the news reports were false or had information from other sources that" }, { "docid": "8493710", "title": "", "text": "purposes, ... to be treated no differently from other actions,” Yiamouyiannis v. Consumers Union, 619 F.2d 932, 940 (2d Cir.1980), and Biro fails to offer a persuasive reason why the pleading standard should differ in defamation cases generally or in the malice inquiry specifically. Biro relies on our pre-Iqbal decision in Church of Scientology International v. Behar, in which we explained that “resolution of the ... actual malice inquiry] typically requires discovery,” 238 F.3d 168, 173 (2d Cir.2001), to argue that it is “impossible” without discovery for a plaintiff to plead facts demonstrating that the claim of actual malice is plausible. We disagree. The hurdles to plausibly pleading actual malice, though significant given the First Amendment interests at stake, are by no means insurmountable. See 2 Robert D. Sack, Sack on Defamation § 16:2.2 at 16.7-8 (4th ed. 2010) (“It can hardly be ruled out ... that plaintiffs’ counsel will develop extrajudicial means of obtaining sufficient facts to plead ‘actual malice’ with the degree of specificity required by Iqbal and Twombly, enabling the plaintiff to prevail on a defendant’s motion to dismiss and then to engage in further discovery on the issue.”). “Although actual malice is subjective, a court typically will infer actual malice from objective facts,” understanding that a defendant in a defamation action will rarely admit that he published the relevant statements with actual malice. Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 183 (2d Cir.2000) (quotation marks omitted). And of course whether actual malice can plausibly be inferred will depend on the facts and circumstances of each ease. For example, a plaintiff may allege that “a story [was] fabricated by the defendant” if the defendant provides no source for the allegedly defamatory statements or if the purported source denies giving the information. St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Or the plaintiff may point to the fact that the allegedly defamatory statements were “based wholly on an unverified anonymous telephone call” or were published despite “obvious [specified] reasons to doubt the veracity of the informant or the accuracy" }, { "docid": "3492374", "title": "", "text": "sufficient to establish reckless disregard.”). But if someone knows that the news story is false, he can’t sanitize his republication by purporting to rely on the news source. Nor can he claim immunity if he has conflicting information from another source and recklessly disregards it. See id. (“In a case ... involving the reporting of a third party’s allegations, ‘recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.’ ” (quoting St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968))). Defendants argue that “reliance on reports of reputable news organizations cannot constitute actual malice as a matter of law.” Appellees’ Br. at 57. We agree with their statement of the rule, but find it inapplicable to them at this early stage in the proceedings. Defendants were not uninvolved third parties who clearly lacked access to the facts behind the published reports. If they knew that the news reports were false or had information from other sources that raised obvious doubts, then they didn’t “rely” on the news stories; they simply hid behind them. What defendants actually want is a rule that purported reliance on reputable news sources cannot constitute actual malice — but that is not the law. This case is before us on a motion to dismiss. We ask only whether the pleadings are sufficient, not whether the plaintiff could find evidence to support them. See, e.g., In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1547 (9th Cir.1994) (en banc) (“[P]laintiffs may aver [state of mind] generally, just as [Rule 9(b)] states — that is, simply by saying that [it] existed.”). The First Amendment imposes substantive requirements on the state of mind a public figure must prove in order to recover for defamation, but it doesn’t require him to prove that state of mind in the complaint. As the Fifth Circuit has explained: The Court in New York Times required “convincing clarity” of the proof presented to show actual malice[;] however, this requirement extends only to the proof required to" }, { "docid": "19861828", "title": "", "text": "malice. The affidavits show that the author as well as his research associates relied on contemporaneous reports in local and national newspapers and magazines for the statements regarding Mr. Schultz. Clearly these reports supplied an adequate foundation for publishing the portions of the article dealing with Mr. Schultz. Furthermore, since these sources are well recognized publications in the field of journalism, they must be recognized as reliable. The inescapable conclusion that follows from this evidence is that the research performed by the author and others at Reader’s Digest convinced them that statements regarding Mr. Schultz were true. Thus, the record clearly demonstrates that the article was honestly believed to be true and was not published with a reckless disregard for its truth. Although the Court recognizes that Michigan courts have generally held that actual malice is a jury question, Lawrence v. Fox, supra, federal courts applying Rule 56 have granted summary judgment in cases involving subjective intent, including libel cases involving questions of malice. See generally, 6, Pt. 2 Moore’s Federal Practice ¶ 56.-17[1]; Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972), cert. denied 409 U.S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257 (1973). Thus, while the Court admits that the question of malice or mental state is generally a question to be resolved by the jury, the Court cannot ignore the clear facts regarding the research and preparation of the article in question. The case for granting a summary judgment here is made even stronger by the plaintiff’s failure to raise any inference whatsoever regarding malice. The plaintiff does not dispute that the research efforts described in the defendant’s affidavits took place. Similarly the plaintiff has not produced one evidentiary fact which even remotely suggests that Mr. Velie or anyone at Reader’s Digest possessed facts which would indicate that the story was false, with the exception of the plaintiff’s denial that he was scheduled to meet Hoffa. In essence, the plaintiff attempts to raise a question of fact by engaging in conjecture and speculation. The plaintiff first contends that the defendant’s failure to conduct an independent investigation" }, { "docid": "13665614", "title": "", "text": "necessary to prove actual malice cannot be prescribed by one all-encompassing test. Case-by-case adjudication is the preferred method for determining whether a given factual situation comes within the ambit of actual malice. St. Amant v. Thompson, 390 U.S. 727, 730-31, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). Although actual malice is a very difficult standard for any plaintiff to meet, simple reliance upon someone else’s statement does not absolve an author or publisher of liability. “[RJecklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” Id. at 732, 88 S.Ct. at 1326. As the Seventh Circuit recently held upon reconsidering Gertz, “a publisher cannot feign ignorance or profess good faith when there are clear indications present which bring into question the truth or falsity of defamatory statements.” Gertz v. Robert Welch, Inc., 680 F.2d 527, 538 (7th Cir. 1982). Writing for this circuit, Judge Phillips recently stated: “As long as the sources of the libelous information appeared reliable, and the defendant had no doubts about its accuracy, the courts have held the evidence of malice insufficient to support a jury verdict, even if a more thorough investigation might have prevented the admitted error.” Ryan v. Brooks, 634 F.2d 726, 734 (4th Cir. 1980). Conscious of our duty to afford the plaintiff the benefit of all inferences that may be drawn on this summary judgment motion, there is evidence in the record that raises a substantial question of material fact as to whether the defendants had obvious reasons to doubt the veracity of the informant on whom they relied for the allegedly libelous part of the article. Nor have the defendants adequately rebutted the plaintiff’s claim that a more careful investigation of the matter should have been made before publication. It is possible, therefore, that the plaintiff can meet his burden of proving that the defendants had actual doubts about the accuracy of the information they published and that their failure to make an adequate investigation will reveal a reckless disregard for the truth. The sole source of" }, { "docid": "18097563", "title": "", "text": "figures and public officials.... For the stake here, if harassment succeeds, is free debate.” Secord v. Cockburn, 747 F.Supp. 779, 786 (D.D.C.1990) (citations omitted). This Court has previously held that NIAC and Parsi are limited public figures. See Parsi v. Daioleslam, 595 F.Supp.2d 99, 104-06 (D.D.C.2009). As such, they must show by clear and convincing evidence that defendant’s statements were made with “actual malice” in order to prevail on their claims. Id.; New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). “The standard of actual malice is a daunting one.” McFarlane v. Esquire Magazine, 14 F.3d 1296, 1308 (D.C.Cir.1996). To establish actual malice, plaintiffs must show that defendant either knew that the challenged publication was false, or that he “in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Subjective ill-will does not establish actual malice, nor does a malevolent motive for publication. Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 665, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). Even “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers” does not establish actual malice. Id. at 666, 109 S.Ct. 2678. But a plaintiff can show actual malice if he can demonstrate by clear and convincing evidence that defendant was “subjectively aware that it was highly probable that the story was (1) fabricated; (2) so inherently improbable that only a reckless person would have put it in circulation; or (3) based wholly on an unverified anonymous telephone call or some other source that appellees had obvious reasons to doubt.” Lohrenz v. Donnelly, 350 F.3d 1272, 1283 (D.C.Cir.2003) (citations omitted). In the summary judgment context, the movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party opposing the motion for summary judgment, however, “may not rely merely on allegations or denials in its" }, { "docid": "18097564", "title": "", "text": "657, 665, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). Even “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers” does not establish actual malice. Id. at 666, 109 S.Ct. 2678. But a plaintiff can show actual malice if he can demonstrate by clear and convincing evidence that defendant was “subjectively aware that it was highly probable that the story was (1) fabricated; (2) so inherently improbable that only a reckless person would have put it in circulation; or (3) based wholly on an unverified anonymous telephone call or some other source that appellees had obvious reasons to doubt.” Lohrenz v. Donnelly, 350 F.3d 1272, 1283 (D.C.Cir.2003) (citations omitted). In the summary judgment context, the movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party opposing the motion for summary judgment, however, “may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in [Rule 56] — set out specific facts showing a genuine issue for trial.” Tate v. Dist. of Colum., 627 F.3d 904, 908-09 (D.C.Cir.2010) (citations omitted); Fed.R.Civ.P. 56(e). In the public figure defamation context, this means that the defendant’s “burden in a motion for summary judgment is simply showing— pointing out to this Court — that there is an absence of evidence to support the element of actual malice in the plaintiffs [defamation] case.” Secord, 141 F.Supp. at 787. Hence, even though defendant has moved for summary judgment here, the Court will focus on plaintiffs’ evidence of actual malice. ANALYSIS One preliminary problem is that plaintiffs have failed to define the universe of allegedly defamatory statements. Plaintiffs have attached several articles to their complaint and to other pleadings, but they have for the most part failed to identify which statements they perceive as defamatory and to put forth specific evidence of actual malice relating to those statements. Moreover, plaintiffs implied at the" } ]

[ { "docid": "22707990", "title": "", "text": "claim that the order of the circuit, court is void/’ But if appellants are right in their contention that the federal Act of itself, from the moment the petition was filed and so long as it remained pending, operated, in the absence of the bankruptcy court’s consent, to oust the jurisdiction of the state court so as to stay its power to proceed with foreclosure, to confirm a sale, and to issue an order ejecting appellants from their farm, the action of the Walworth County Court was not merely erroneous but was beyond its power, void, and subject to collateral attack. And the determination whether the Act did so operate is a construction of that Act and . a federal question. It is generally true that a judgment by a court of competent jurisdiction bears a presumption, of regularity and is not thereafter subject to-collateral attack. But Congress, because its power over the subject of bankruptcy is plenary, may by specific bankruptcy legislation create an exception to that principle and render judicial acts taken with respect to the person or property of a debtor whom the bankruptcy law protects nullities and vulnerable collaterally. Although the Walworth County Court had general jurisdiction over foreclosures under the law of Wisconsin, a peremptory prohibition by Congress in •the exercise of its supreme power oyer bankruptcy that no state court have jurisdiction over a petitioning farmer-debtor or his property, would have rendered the confirmation of sale and its enforcement beyond the County Court’s power and nullities subject to collateral attack. The States cannot, in the exercise of control over local laws and practice, vest state courts with power to violate the supreme law of the land. The Constitution grants Congress exclusive power to regulate bankruptcy and under-this power Congress can limit the jurisdiction which courts, state or federal, can exercise over the person and property of a debtor who duly invokes the bankruptcy law. If Congress has vested in the bankruptcy courts exclusive jurisdiction over farmer-debtors and their prop- ■ erty, and has by its Act withdrawn from all other courts all power under" } ]

[ { "docid": "15781869", "title": "", "text": "has jurisdiction to make such a ruling. Thus, reopening is not futile. E. Rooker-Feldman Doctrine Conway argues that the state court judgment is not subject to collateral attack, that Beneficial is prevented from raising an issue with the judgment due to a state statute of limitations, and that the issue was fully litigated in New York state court and cannot be relitigated. These arguments are without merit if this Court has the exclusive jurisdiction to determine stay violations. Ordinarily, the Rooker-Feld-man doctrine bars lower federal courts from reviewing state court decisions. See In re Dabrowski, 257 B.R. 394, 405 (Bankr.S.D.N.Y.2001). However, there is an exception to this doctrine. A bankruptcy court can “override” a state court judgment if the state court judgment is void ab initio. Id. at 406. That is, state court judgments are subject to collateral attack in a federal court if the state court acted beyond its power. Id. In the Second Circuit, any proceedings or actions described in § 362(a)(1) are void and without legal effect if they occur after the automatic stay takes effect. See Eastern Refractories Co. Inc. v. Forty Eight Insulations Inc., 157 F.3d 169, 172 (2d Cir.1998); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 527 (2d Cir.1994); 48th Street Steakhouse, 835 F.2d at 431. This is true even if a creditor received no notice of the stay. In re Heating Oil Partners, 2009 WL 5110838, at * 9 (D.Conn. Dec. 17, 2009). The ability to collaterally attack a state court judgment was first stated by the Supreme Court in Kalb v. Feuerstein, 308 U.S. 433, 438-39, 60 S.Ct. 343, 84 L.Ed. 370 (1940): It is generally true that a judgment by a court of competent jurisdiction bears a presumption of regularity and is not thereafter subject to collateral attack. But Congress, because its power over the subject of bankruptcy is plenary, may by specific bankruptcy legislation create an exception to that principle and render judicial acts taken with respect to the person or property of a debtor whom the bankruptcy law protects nullities and vulnerable collaterally. Section 1334(a) of title 28" }, { "docid": "10204434", "title": "", "text": "a complete nullity and without legal effect. In the interest of finality, the concept of void judgments is narrowly construed. While absence of subject matter jurisdiction may make a judgment void, such total want of jurisdiction must be distinguished from an error in the exercise of jurisdiction. A court has the power to determine its own jurisdiction, and an error in that determination will not render the judgment void. Only in the rare instance of a clear usurpation of power will a judgment be rendered void. Hooks, 771 F.2d at 949 (citing Lubben v. Selective Service System Local Board No. 27, 453 F.2d 645, 649 (1st Cir.1972)); see Jones v. Giles, 741 F.2d 245, 248 (9th Cir.1984) (“An error in interpreting a statutory grant of jurisdiction is not ... equivalent to acting with total want of jurisdiction and does not render the judgment a complete nullity”). Although the Secretary cited Hooks in his motion, he cited it for the proposition that void judgments can be collaterally attacked. It is this crucial distinction between void and voidable judgments that the Secretary failed to consider in this case. The course the Whitt decision took leaves us in this case, at the time of the final decision, with an error in interpretation and not a total want of jurisdiction. See Kansas City Southern Ry. Co. v. Great Lakes Carbon Corp., 624 F.2d 822, 826 (8th Cir.1980) (“when the challenge is to an erroneous interpretation of a statutory grant of jurisdiction and the judgment is not appealed, thus becoming final, the policy favoring certainty in judicial resolution of controversies prevails.”); see also Hamilton, 4 Vet.App. at 540 (Court announces its “strong disinclination” to apply the single NOD rule retroactively, absent extraordinarily good cause to do so). Accordingly, the earlier final judgment in this case sprang from an exercise of jurisdiction that now appears to be an after-the-fact error and not from action in a case where jurisdiction was completely lacking. The implicit motion for leave to file is DENIED, and the judgment of April 30, 1992, remains." }, { "docid": "17310613", "title": "", "text": "subject-matter jurisdiction may not acquire it by consent of the parties.” Fafel v. DiPaola, 399 F.3d 403, 410 (1st Cir.2005). “Weighing against this seemingly ‘inflexible’ jurisdictional requirement, however, is a strong interest in the finality of judgments.” Id. (internal citation omitted). A district court’s express or implicit determination that it has jurisdiction is open to direct review, but it is res judicata when collaterally attacked. Id. In an effort to balance the competing policies of observing limits on federal jurisdiction and respecting the finality of judgments, “this court has established a high bar for collaterally vacating a judgment for lack of subject-matter jurisdiction.” Id. Namely, the judgment must be void in order to be vacated for lack of subject-matter jurisdiction on collateral review: A void judgment is to be distinguished from an erroneous one, in that the latter is subject only to direct attack. A void judgment is one which, from its inception, was a complete nullity and without legal effect.... While absence of subject matter jurisdiction may make a judgment void, such total want of jurisdiction must be distinguished from an error in the exercise of jurisdiction ... [which] will not render the judgment void. Only in the rare instance of a clear usurpation of power will a judgment be rendered void. Id. (internal marks omitted) (quoting Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 649 (1st Cir.1972)). Under this standard, if the record supports an “arguable basis” for concluding that subject-matter jurisdiction existed, a final judgment cannot be collaterally attacked as void. Id. at 411. The district court implicitly found it had jurisdiction to enter the settlement judgment. We will therefore treat BaellaSilva’s collateral attack on the settlement judgment in this appeal as we would treat an appeal from the denial of a motion for relief from a void judgment pursuant to Federal Rule of Civil Procedure 60(b)(4). See id. at 409. Accordingly, we will independently examine the record to determine whether there is an arguable basis for concluding that subject-matter jurisdiction existed or whether the judgment is void as a clear usurpation of" }, { "docid": "15190509", "title": "", "text": "n. 9,102 S.Ct. 2099 (“A party that has had an opportunity to litigate the question of subject matter jurisdiction may not, however, reopen that question in a collateral attack upon an adverse judgment.”) (emphasis added); Stoll, 305 U.S. at 171-72, 59 S.Ct. 134 (“Every court in rendering a judgment tacitly, if not expressly, determines its jurisdiction over the parties and the subject matter.”). The rationale for a general prohibition against collateral attacks was articulated by the Supreme Court in Stoll: It is just as important that there should be a place to end as that there should be a place to begin litigation. After a party has had his day in court, with opportunity to present his evidence and his view of the law, a collateral attack upon the decision as to jurisdiction there rendered merely retries the issue previously determined. Stoll, 305 U.S. at 172, 59 S.Ct. 134. The rule of finality has yielded only to narrow exceptions that give effect to substantial concerns of public policy. See Chicago, Milwaukee, St. Paul and Pacific R.R. Co. v. United States, 585 F.2d 254, 258 (7th Cir.1978); United States v. Eastport S.S. Corp., 255 F.2d 795, 803 (2d Cir.1958). Mere error in the exercise of jurisdiction will not render a prior judgment invalid. “A court has the power to determine its own jurisdiction and an error in that determination will not render the judgment void. Only in the rare instance of a clear usurpation of power will a judgment be rendered void.” Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 649 (1st Cir.1972); see Hooks v. Hooks, 771 F.2d 935, 949-50 (6th Cir.1985). In Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940), the Supreme Court held that the constitutional grant to Congress of the exclusive power to regulate bankruptcy empowered Congress to oust the jurisdiction of state courts over bankruptcy matters by vesting exclusive jurisdiction in the federal courts, and thus to render state court judgments purporting to decide bankruptcy questions vulnerable to collateral attack. Id. at 438-39, 60 S.Ct. 343. The" }, { "docid": "17310614", "title": "", "text": "of jurisdiction must be distinguished from an error in the exercise of jurisdiction ... [which] will not render the judgment void. Only in the rare instance of a clear usurpation of power will a judgment be rendered void. Id. (internal marks omitted) (quoting Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 649 (1st Cir.1972)). Under this standard, if the record supports an “arguable basis” for concluding that subject-matter jurisdiction existed, a final judgment cannot be collaterally attacked as void. Id. at 411. The district court implicitly found it had jurisdiction to enter the settlement judgment. We will therefore treat BaellaSilva’s collateral attack on the settlement judgment in this appeal as we would treat an appeal from the denial of a motion for relief from a void judgment pursuant to Federal Rule of Civil Procedure 60(b)(4). See id. at 409. Accordingly, we will independently examine the record to determine whether there is an arguable basis for concluding that subject-matter jurisdiction existed or whether the judgment is void as a clear usurpation of power. See id. at 410 (applying de novo review). See also Nemaizer v. Baker, 793 F.2d 58, 65 (2d Cir.1986) (“When a district court has not explicitly noted why it assumed jurisdiction over a suit, appellate courts will independently examine the record to determine whether a reasonable basis existed for the lower court’s implicit finding that it had jurisdiction.”). Our review of the record convinces us that there is an arguable basis for concluding that subject matter jurisdiction existed to enter the settlement judgment. The complaint indicates that the citizenship of the parties is not completely diverse because Palmas del Sol and its partners are citizens of Puerto Rico, as is Baella-Silva. The notice of removal, however, avers that complete diversity exists and specifically asserts that the nondiverse parties listed on the complaint are not real parties in interest but were in fact fraudulently joined in an effort to preclude removal to federal court. There are grounds for crediting the averments of the notice of removal. The fee dispute that resulted in the settlement judgment" }, { "docid": "23201739", "title": "", "text": "362(a)(1), and constituted a violation of the automatic stay. The courts are split on whether actions taken in derogation of the automatic stay are void ab initio or merely voidable. See, e.g., Carpio v. Smith (In re Carpio), 213 B.R. 744, 748, 749 (Bankr.W.D.Mo.1997)(collecting bankruptcy court and district court cases within the Eighth Circuit that have addressed this issue, along with circuit court cases and one United States Supreme Court case). In Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940), the United States Supreme Court, in the context of the Bankruptcy Act of 1898, held that actions taken in violation of the automatic stay are void. The Supreme Court opined: It is generally true that a judgment by a court of competent jurisdiction bears a presumption of regularity and is not thereafter subject to collateral attack. But Congress, because its power over the subject of bankruptcy is plenary, may by specific bankruptcy legislation create an exception to that principle and render judicial acts taken with respect to the person or property of a debtor whom the bankruptcy law protects nullities and vulnerable collaterally. Although the Walworth County Court had general jurisdiction over foreclosures under the law of Wisconsin, a peremptory prohibition by Congress in the exercise of its supreme power over bankruptcy that no State court have jurisdiction over a petitioning farmer-debt- or or his property, would have rendered the confirmation of sale and its enforcement beyond the County Court’s power and nullities subject to collateral attack. The States cannot, in the exercise of control over local laws and practice, vest State courts with power to- violate the supreme law of the land. The Constitution grants Congress exclusive power to regulate bankruptcy and under this power Congress can limit that jurisdiction which courts, State or Federal, can exercise over the person and property of a debtor who duly invokes the bankruptcy law. If Congress has vested in the bankruptcy courts exclusive jurisdiction over farmer-debtors and their property, and has by its Act withdrawn from all other courts all,power under any circumstances to maintain and enforce" }, { "docid": "9439494", "title": "", "text": "judgment is void ab initio. In re James, 940 F.2d 46, 52 (3rd Cir.1991); In re Gruntz, 202 F.3d 1074, 1082 (9th Cir.2000). However, these cases only recognized state court judgments as void ab initio in bankruptcy cases where state court actions violated the automatic stay. Schmitt v. Schmitt, 165 F.Supp.2d 789, 796 (N.D.Ill.2001); Drewicz v. Dachis, No. 01 C.1928, 2002 WL 849810 at *3 (N.D.Ill. May 2, 2002). The In re James court did in fact indicate that a state court judgment could be void ab initio based on a lack of personal or subject matter jurisdiction, but only in dicta. 940 F.2d at 51. On the contrary, other courts have held that no exception to the Rooker/Feldman doctrine exists when there is a challenge to the state court’s personal jurisdiction or subject matter jurisdiction. Schmitt, 165 F.Supp.2d at 796-97; Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 649 (1st Cir.1972). The Schmitt court held that state courts are “perfectly well qualified” to determine whether service of process was constitutional and added that it would be inappropriate for a federal court to “second-guess” that determination. 165 F.Supp.2d at 797. Similarly, the Lubben court stated that the concept of a void judgment should be narrowly construed and went on to explain that “[a] court has the power to determine its own jurisdiction, and an error in that determination will not render the judgment void. Only in the rare instance of a clear usurpation of power will a judgment be rendered void.” 453 F.2d at 649. Further, a Southern District case, and in fact the only case in the Second Circuit that addresses this issue, stated that the results of a state court judgment cannot be reconsidered by a federal court where the state court would not vacate the judgment as for fraud or lack of jurisdiction. In re Sletteland, 260 B.R. 657, 668 n. 6 (Bankr.S.D.N.Y.2001). Salem unsuccessfully appealed the state court judgment all the way to the Court of Appeals. The only federal court to which Salem can resort at this point is the United" }, { "docid": "15781870", "title": "", "text": "automatic stay takes effect. See Eastern Refractories Co. Inc. v. Forty Eight Insulations Inc., 157 F.3d 169, 172 (2d Cir.1998); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 527 (2d Cir.1994); 48th Street Steakhouse, 835 F.2d at 431. This is true even if a creditor received no notice of the stay. In re Heating Oil Partners, 2009 WL 5110838, at * 9 (D.Conn. Dec. 17, 2009). The ability to collaterally attack a state court judgment was first stated by the Supreme Court in Kalb v. Feuerstein, 308 U.S. 433, 438-39, 60 S.Ct. 343, 84 L.Ed. 370 (1940): It is generally true that a judgment by a court of competent jurisdiction bears a presumption of regularity and is not thereafter subject to collateral attack. But Congress, because its power over the subject of bankruptcy is plenary, may by specific bankruptcy legislation create an exception to that principle and render judicial acts taken with respect to the person or property of a debtor whom the bankruptcy law protects nullities and vulnerable collaterally. Section 1334(a) of title 28 of the United States Code in conjunction with the Standing Order of Reference signed by Chief Judge Loretta A. Preska on January 31, 2012 gives bankruptcy courts “original and exclusive jurisdiction of all cases under title 11.” Bankruptcy courts also “have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to a case under title 11.” 28 U.S.C. § 1334(b). “[Nothing in that section vests the states with any jurisdiction over a core bankruptcy proceeding, including ‘motions to terminate, annul, or modify the automatic stay’ ” Gruntz v. Cnty. of Los Angeles (In re Gruntz), 202 F.3d 1074, 1083 (9th Cir.2000). Even assuming that the state courts have concurrent jurisdiction over stay violations, those judgments must bow to the plenary power vested in the federal courts over bankruptcy proceedings. Id. (“Indeed, that was precisely the issue in Kalb, in which the state was proceeding within its jurisdictional powers as to the subject matter, but in derogation of the federal bankruptcy stay.”); In re Benalcazar, 283 B.R." }, { "docid": "15190510", "title": "", "text": "R.R. Co. v. United States, 585 F.2d 254, 258 (7th Cir.1978); United States v. Eastport S.S. Corp., 255 F.2d 795, 803 (2d Cir.1958). Mere error in the exercise of jurisdiction will not render a prior judgment invalid. “A court has the power to determine its own jurisdiction and an error in that determination will not render the judgment void. Only in the rare instance of a clear usurpation of power will a judgment be rendered void.” Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 649 (1st Cir.1972); see Hooks v. Hooks, 771 F.2d 935, 949-50 (6th Cir.1985). In Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940), the Supreme Court held that the constitutional grant to Congress of the exclusive power to regulate bankruptcy empowered Congress to oust the jurisdiction of state courts over bankruptcy matters by vesting exclusive jurisdiction in the federal courts, and thus to render state court judgments purporting to decide bankruptcy questions vulnerable to collateral attack. Id. at 438-39, 60 S.Ct. 343. The Court explained that fundamental principles of federalism outweighed the interest in finality: It is generally true that a judgment by a court of competent jurisdiction bears a presumption of regularity and is not thereafter subject to collateral attack. But Congress, because its power over the subject of bankruptcy is plenary, may by specific bankruptcy legislation create an exception to that principle and render judicial acts taken with respect to the person or property of a debtor whom the bankruptcy law protects nullities and vulnerable collaterally.... The States cannot, in the exercise of control over local laws and practice, vest state courts with the power to violate the supreme law of the land. Id. at 438-39, 60 S.Ct. 343 (footnotes omitted). The Court has also invalidated a judgment on collateral review when the earlier exercise of jurisdiction violated principles of sovereign immunity. United States v. United States Fidelity & Guar. Co., 309 U.S. 506, 514, 60 S.Ct. 653, 84 L.Ed. 894 (1940) (holding that “[ejonsent alone gives jurisdiction to adjudge against a sovereign,” and “[ajbsent that" }, { "docid": "19280308", "title": "", "text": "to Rooker-Feldman, but a procedure with roots in statutory jurisdiction parallel to- and in no way precluded by-the doctrine. So, too, it is with bankruptcy law. In apparent contradiction to the Rooker-Feldman theory, bankruptcy courts are empowered to avoid state judgments, see, e.g., 11 U.S.C. §§ 544, 547, 548, 549; to modify them, see, e.g., 11 U.S.C. §§ 1129, 1325; and to discharge them, see, e.g., 11 U.S.C. §§ 727, 1141, 1328. By statute, a post-petition state judgment is not binding on the bankruptcy court to establish the amount of a debt for bankruptcy purposes. See 11 U.S.C. § 109(e); Slack v. Wilshire Ins. Co. (In re Slack), 187 F.3d 1070, 1073 (9th Cir.1999), as amended 1999 WL 694990 (Sept. 9, 1999). Thus, final judgments in state courts are not necessarily preclusive in United States bankruptcy courts. Indeed, the rule has long stood that “[a] state court judgment entered in a case that falls within the federal courts’ exclusive jurisdiction is subject to collateral attack in the federal courts.” Gonzales v. Parks (In re Gonzales), 830 F.2d 1033, 1036 (9th Cir.1987). The United States Supreme Court explained in Kalb v. Feuerstein, 308 U.S. 433, 438-39, 60 S.Ct. 343, 84 L.Ed. 370 (1940): It is generally true that a judgment by a court of competent jurisdiction bears a presumption of regularity and is not thereafter subject to collateral at tack. But Congress, because its power over the subject of bankruptcy is plenary, may by specific bankruptcy legislation create an exception to that principle and render judicial acts taken with respect to the person or property of a debtor whom the bankruptcy law protects nullities and vulnerable collaterally- As Representative Kastenmeier further noted in discussing the Bankruptcy Code: State law rights arising in core bankruptcy proceedings are functionally equivalent to congressionally created rights, because Congress has the power to modify State law rights in bankruptcy proceedings. Unlike the States, Congress may impair the obligation of contracts through the bankruptcy clause. Indeed, the very purpose of bankruptcy is to modify the rights of debtors and creditors, and the bankruptcy code authorizes the bankruptcy" }, { "docid": "15190511", "title": "", "text": "Court explained that fundamental principles of federalism outweighed the interest in finality: It is generally true that a judgment by a court of competent jurisdiction bears a presumption of regularity and is not thereafter subject to collateral attack. But Congress, because its power over the subject of bankruptcy is plenary, may by specific bankruptcy legislation create an exception to that principle and render judicial acts taken with respect to the person or property of a debtor whom the bankruptcy law protects nullities and vulnerable collaterally.... The States cannot, in the exercise of control over local laws and practice, vest state courts with the power to violate the supreme law of the land. Id. at 438-39, 60 S.Ct. 343 (footnotes omitted). The Court has also invalidated a judgment on collateral review when the earlier exercise of jurisdiction violated principles of sovereign immunity. United States v. United States Fidelity & Guar. Co., 309 U.S. 506, 514, 60 S.Ct. 653, 84 L.Ed. 894 (1940) (holding that “[ejonsent alone gives jurisdiction to adjudge against a sovereign,” and “[ajbsent that consent, the attempted exercise of judicial power is void.”). The Second Restatement of Judgments establishes a presumption of finality, subject to three narrow exceptions. A collateral attack on the judgment for lack of subject matter jurisdiction is prohibited unless: (1) the exercise of jurisdiction constituted a “manifest abuse of authority”; (2) “allowing the challenged judgment to stand would substantially infringe the authority of another tribunal or agency of government”; or (3) “the judgment was rendered by a court lacking capability to make an adequately informed determination” as to its own jurisdiction. Restatement (Second) of Judgments § 12 (1982); see Blinder, Robinson & Co. v. SEC, 837 F.2d 1099, 1104 (D.C.Cir.1988); Hodge v. Hodge, 621 F.2d 590, 593 (3d Cir.1980). B With these principles in mind, we consider PTI’s arguments. PTI first contends that § 2(e)(1), which vests jurisdiction in the ICC to decide whether a carrier’s attempt to collect a filed rate constitutes an unreasonable practice, placed that issue beyond the jurisdiction of the district court. According to PTI, the district court’s exercise of jurisdiction" }, { "docid": "1534394", "title": "", "text": "state court judgment because it was void ab initio. Id. at 52. We observed that a bankruptcy court “possesses] the power to enjoin a pending state action that violates' the automatic stay,” id., and set out the following general principle: [OJnce validly entered in a court of competent jurisdiction, a judgment is considered valid until overturned or vacated by that court or an appellate court with supervisory powers over that court’s system. There appears to be only one exception to this hard and fast rule of federal-state comity, and it comes into play only when the state proceedings are considered a legal nullity and thus void ab initio. A federal bankruptcy court may intervene only when the state proceedings are void ab initio; it lacks the power where it simply disagrees with the result obtained in an otherwise valid proceeding. The distinction between a void judgment and one that is erroneously decided is crucial: A void judgment is to be distinguished from an erroneous one, in that the latter is subject only to direct attack. A void judgment is one which, from its inception, was a complete nullity and without legal effect. In the interest of finality, the concept of void judgments is narrowly construed. Id. at 52 (citation omitted) (quoting Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 649 (1st Cir.1972) (footnote omitted)). Since the district court based its decision to vacate the state court judgment on its view that the state court erroneously decided the merits, and not because the state court lacked jurisdiction under the automatic stay, we held that the district court’s decision must be reversed because “[s]uch federal collateral review of a state proceeding is inappropriate.” Id. Here, the bankruptcy court has the power to vacate the decision of the California Court of Appeal dismissing Raymark’s appeal because actions taken in violation of the automatic stay are void ab initio. See Kalb v. Feuerstein, 308 U.S. 433, 438-40, 60 S.Ct. 343, 345-46, 84 L.Ed. 370 (1940); In re Ward, 837 F.2d 124, 126 (3d Cir.1988). “Because a void judgment is null" }, { "docid": "435181", "title": "", "text": "judicial orders directly, then any party subjected to a continuing court order might be able to bypass the issuing and reviewing courts entirely. The PLRA automatic stay, as construed by the state prison officials, impermissibly circumvents the judicial process. The defendants argue that legislative authority to enact an automatic stay of judicial proceedings has long been established, as evidenced by the time-honored automatic stay in the bankruptcy arena. Upon the filing of a bankruptcy petition, § 362(a) of Title 11 requires a stay of civil litigation against a debtor unless the bankruptcy court determines otherwise. In upholding the constitutionality of this bankruptcy automatic stay, the Supreme Court explained that although “[i]t is generally true that a judgment by a court of competent jurisdiction bears a presumption of regularity and is not thereafter subject to collateral attack,” Congress, pursuant to its plenary constitutional power over bankruptcy, see U.S. Const, art. I, § 8, cl. 4, “may by specific bankruptcy legislation create an exception to that principle and render judicial acts taken with respect to the person or property of a debtor whom the bankruptcy law protects nullities and vulnerable collaterally.” Kalb v. Feuerstein, 308 U.S. 433, 438-39, 60 S.Ct. 343, 84 L.Ed. 370 (1940) (footnotes omitted). Thus, under the exclusive constitutional grant of power to Congress to regulate bankruptcy, “Congress can limit the jurisdiction which courts, State or Federal, can exercise over the person and property of a debtor who duly invokes the bankruptcy law.” Id. at 439, 60 S.Ct. 343. In contrast, once Congress establishes jurisdiction of the lower federal courts in an area outside Congress’s enumerated Article I plenary powers, “the courts are vested with judicial powers pursuant to Article III.” Eash v. Riggins Trucking Inc., 757 F.2d 557, 562 (3d Cir.1985) (en banc). Having conferred jurisdiction upon the lower courts in this area, the Legislature cannot then displace the courts and itself exercise judicial power, save through impeachment. See Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 Iowa L.Rev. 1267, 1317 (1996) (“[N]o decision of any court of the United States can, under" }, { "docid": "309339", "title": "", "text": "Congress had deprived state courts and officials of jurisdiction to foreclose, confirm a sale, execute a sheriffs deed, issue a writ of assistance, and eject the debtors from their property. Id. at 443-44, 60 S.Ct. 348. The analysis in Kalb was straightforwardly based on the Supremacy Clause. Agreeing that “[i]t is generally true that a judgment by a court of competent jurisdiction bears a presumption of regularity and is not thereafter subject to collateral attack,” it explained that “Congress, because its power over the subject of bankruptcy is plenary, may by specific bankruptcy legislation create an exception to that principle and render judicial acts taken with respect to the person or property of a debtor whom the bankruptcy law protects nullities and vulnerable collaterally.” Id. at 438-39, 60 S.Ct. 343. Reasoning further that, under the Bankruptcy Power, “Congress can limit the jurisdiction which courts, state or federal, can exercise over the person and property of a debtor who duly invokes the bankruptcy law,” and concluding that Bankruptcy Act § 75 had been amended by the Frazier-Lemke Act specifically to deprive state courts of “power and jurisdiction to continue or maintain in any manner the foreclosure proceedings,” it held that the Wisconsin courts lacked jurisdiction. Hence, its orders were a nullity in the face of the Supremacy Clause and “void.” Id. at 439-40, 60 S.Ct. 343. As relevant to the present appeal, the Court in Kalb described the congressional scheme as “self-executing” and made plain that there is no requirement that the fact of bankruptcy protection be raised in the state court: Congress manifested its intention that the issue of jurisdiction in the foreclosing court need not be contested or even raised by the [debtor].... [Considerations as to whether the issue of jurisdiction was actually contested in the County Court, or whether it could have been contested, are not applicable where the plenary power of Congress over bankruptcy has been exercised as in this Act. Id. at 444, 60 S.Ct. 343 (emphasis supplied). Kalb was in the mainstream of the settled rules described above regarding “void” judgments rendered by a court" }, { "docid": "19280309", "title": "", "text": "830 F.2d 1033, 1036 (9th Cir.1987). The United States Supreme Court explained in Kalb v. Feuerstein, 308 U.S. 433, 438-39, 60 S.Ct. 343, 84 L.Ed. 370 (1940): It is generally true that a judgment by a court of competent jurisdiction bears a presumption of regularity and is not thereafter subject to collateral at tack. But Congress, because its power over the subject of bankruptcy is plenary, may by specific bankruptcy legislation create an exception to that principle and render judicial acts taken with respect to the person or property of a debtor whom the bankruptcy law protects nullities and vulnerable collaterally- As Representative Kastenmeier further noted in discussing the Bankruptcy Code: State law rights arising in core bankruptcy proceedings are functionally equivalent to congressionally created rights, because Congress has the power to modify State law rights in bankruptcy proceedings. Unlike the States, Congress may impair the obligation of contracts through the bankruptcy clause. Indeed, the very purpose of bankruptcy is to modify the rights of debtors and creditors, and the bankruptcy code authorizes the bankruptcy court to abrogate or modify State-created obligations in many ways. 130 Cong. Rec. HI 110 (daily ed. Mar. 20, 1984). Congress’s plenary power over bankruptcy derives from the constitutional imperative “[t]o establish ... uniform Laws on the subject of Bankruptcies throughout the United States.” U.S. Const., Art. I, § 8. “The Constitution grants Congress exclusive power to regulate bankruptcy and under this power Congress can limit that jurisdiction which courts, State or Federal, can exercise over the person and property of a debtor who duly invokes the bankruptcy law.” Kalb, 308 U.S. at 439, 60 S.Ct. 343. In furtherance of this charge, jurisdiction and authority over bankruptcies has been vested, from the beginning of the Republic, in the federal district courts. See, e.g., Bankruptcy Act of 1800, § 2, 2 Stat. 19, 21; Bankruptcy Act of 1841, § 6, 5 Stat. 440, 445; Bankruptcy Act of 1867, § 1, 14 Stat. 517, 517; Bankruptcy Act of 1898, § 2, 30 Stat. 544, 545. The current bankruptcy jurisdictional statute, 28 U.S.C. § 1334, expands the historic" }, { "docid": "10204433", "title": "", "text": "and the other statutory requirements for jurisdiction (not at issue here) are present. See 38 U.S.C.A. § 7251 (West 1991). The Whitt decision, valid at the time the Court remanded the veteran’s case, interpreted this statute to include multiple NODs. The Court reasoned that since the applicable regulation defined an NOD as “expressing disagreement with an adjudicative determination,” any adjudicative determination, not only the original adjudication, could give rise to a jurisdiction-conferring NOD. Whitt, 1 Vet.App. at 42. Although Whitt was subsequently called into question by the Federal Circuit’s decision in Strott and was overturned by the Hamilton decision, it does not necessarily follow that the Court lacked jurisdiction over cases decided before Whitt was overturned. In Hooks v. Hooks, 771 F.2d 935 (6th Cir.1985), the United States Court of Appeals for the Sixth Circuit discussed the difference between void judgments and voidable judgments: A void judgment is to be distinguished from an erroneous one, in that the latter is subject only to direct attack. A void judgment is one which, from its inception, was a complete nullity and without legal effect. In the interest of finality, the concept of void judgments is narrowly construed. While absence of subject matter jurisdiction may make a judgment void, such total want of jurisdiction must be distinguished from an error in the exercise of jurisdiction. A court has the power to determine its own jurisdiction, and an error in that determination will not render the judgment void. Only in the rare instance of a clear usurpation of power will a judgment be rendered void. Hooks, 771 F.2d at 949 (citing Lubben v. Selective Service System Local Board No. 27, 453 F.2d 645, 649 (1st Cir.1972)); see Jones v. Giles, 741 F.2d 245, 248 (9th Cir.1984) (“An error in interpreting a statutory grant of jurisdiction is not ... equivalent to acting with total want of jurisdiction and does not render the judgment a complete nullity”). Although the Secretary cited Hooks in his motion, he cited it for the proposition that void judgments can be collaterally attacked. It is this crucial distinction between void and" }, { "docid": "426103", "title": "", "text": "legal effect. In the interest of finality, the concept of void judgments is narrowly construed.... Only in the rare instance of a clear usurpation of power will a judgment be rendered void. Lubben v. Selective Service System Local Board No. 27, 453 F.2d 645, 649 (1st Cir. 1972). A judgment is not void merely because it is or may be erroneous.. .. For a judgment to be void under Rule 60(b)(4), it must be determined that the rendering court was powerless to enter it. If found at all, voidness usually arises for lack of subject matter jurisdiction or jurisdiction over the parties. It may also arise if the court’s action involves a plain usurpation of power or if the court has acted in a manner inconsistent with due process of law. V. T. A., Inc. v. Airco., Inc., 597 F.2d 220, 224-25 (10th Cir. 1979). The present case clearly met diversity requirements for jurisdiction. More than $10,000 was in controversy with a Swiss corporation on one side and North Carolina individuals and corporations on the other. The court usurped no power nor did it act inconsistently with due process. All the parties clearly wanted the court to do as it did in entering the consent judgment and no one was then dissatisfied. The judgment, therefore, may, at most, have been erroneous, but any error, if it indeed existed, could have been attacked on appeal. Error, however, does not make the judgment void and, therefore, Fed.R.Civ.P. 60(b)(4) is inapplicable. In re Texlon Corp., 596 F.2d 1092, 1099 (2d Cir. 1979) (“The financing order was not ‘void’ within the meaning of F.R.Civ.P. 60(b)(4). ... Even if the order had been contrary to an express provision of the Bankruptcy Act, which we have held it was not, the order would not have exceeded the ‘jurisdiction’ of the court.... The financing order was within the parameters of the bankruptcy court’s authority, ‘[a]nd even gross error in the decree would not render it void.’ Swift & Co. v. United States, 276 U.S. 311, 330, [48 S.Ct. 311, 316, 72 L.Ed. 587],. . .”). See also" }, { "docid": "4753006", "title": "", "text": "the necessity of requiring a state to pursue its tax lien within the framework of the federal bankruptcy proceeding: “If the reorganization court lacked the power to deal with tax liens of a State, the assertion by a State of a lien would pull out chunks of an estate from the reorganization court and transfer a part of the struggle over the corpus into tax bureaus and other state tribunals. That would not only seriously impair the power of the court to administer the estate [but would also] ... adversely affect the power of ... the court to promulgate a reorganization plan.” Finally, the Supreme Court has held that Congress may, pursuant to the federal bankruptcy power, enact an automatic stay which protects debtors and their property from judicial actions pursued outside the realm of the bankruptcy proceeding. In upholding the validity of § 75 of the former Bankruptcy Act [11 U.S.C. § 203 (repealed 1978)] which provided for an automatic stay of all foreclosure proceedings in state courts upon the filing of a bankruptcy petition by a farmer, the Court in Kalb v. Feuerstein, 308 U.S. 433, 438-439, 60 S.Ct. 343, 346, 84 L.Ed. 370 (1940), justified Congress’ implementation of an automatic stay of state court proceedings as follows: “It is generally true that a judgment by a court of competent jurisdiction bears a presumption of regularity and is not thereafter subject to collateral attack. But Congress, because its power over the subject of bankruptcy is plenary, may by specific bankruptcy legislation create an exception to that principle and render judicial acts taken with respect to the person or property of a debtor whom the bankruptcy law protects nullities and vulnerable collaterally... The States cannot, in the exercise of control over local laws and practice, vest State courts with power to violate the supreme law of the land. The Constitution grants Congress exclusive power to regulate bankruptcy and under this power Congress can limit the jurisdiction which courts, State or Federal, can exercise over the person and property of a debtor who duly invokes the bankruptcy law. If Congress" }, { "docid": "16759443", "title": "", "text": "(quoting In re Chicago Transit Co., 129 F.2d 1, 5 (7th Cir.), cert. denied, 317 U.S. 683, 63 S.Ct. 205, 87 L.Ed. 547 (1942)) (citations omitted). We further stated: The police power of the several States embodies the main bulwark of protection by which they carry out their responsibilities to the People; its abrogation is therefore a serious matter. Congress should not be assumed, therefore, to have been miserly in its refund of that power to the States. Where important state law or general equitable principles protect some public interest, they should not be overridden by federal legislation unless they are inconsistent with explicit congressional intent such that the supremacy clause mandates their supersession. Id. at 273 (citations omitted). A. It is clear that in this case the district court questioned the merits of the state court proceedings after deciding that the police power exception was applicable. However, once validly entered in a court of competent jurisdiction, a judgment is considered valid until overturned or vacated by that court or an appellate court with supervisory powers over that court’s system. There appears to be only one exception to this hard and fast rule of federal-state comity, and it comes into play only when the state proceedings are considered a legal nullity and thus void ab initio. Kalb, 308 U.S. at 438-40, 60 S.Ct. at 345-47. A federal bankruptcy court may intervene only when the state proceedings are void ab initio; it lacks the power where it simply disagrees with the result obtained in an otherwise valid proceeding. The distinction between a void judgment and one that is erroneously decided is crucial: A void judgment is to be distinguished from an erroneous one, in that the latter is subject only to direct attack. A void judgment is one which, from its inception, was a complete nullity and without legal effect. In the interest of finality, the concept of void judgments is narrowly construed. Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 649 (1st Cir.1972) (footnote omitted), cited with approval in Marshall v. Board of Educ., Bergenfield, New" }, { "docid": "13798801", "title": "", "text": "to Section 524, to review actions of a state court, given appropriate circumstances, and where warranted to enjoin further proceedings in that court. Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230 (1934). This case has been applied frequently. Specific application of Local Loan was made in Browne v. San Luis Obispo National Bank, 462 F.2d 129, 133 (9th Cir.1972), a case similar in its facts to the one before us. The creditor, listed as unsecured by the bankrupt, some two years after bankruptcy sued in state court for foreclosure of an equitable lien. The court stated: “Thus, the bank’s sole cause of action stems from the promissory note, which was listed on Mrs. Browne’s schedule of debts. The Bankruptcy Court has jurisdiction to ensure that the discharge it granted is not circumvented.” B. A Debtor may collaterally attack the state court’s assumption of personal and subject matter jurisdiction despite any waiver or other procedural mistakes he made, acting pro se. See Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940). In Kalb, a state foreclosure action taken subsequent to filing of a petition under Sec. 75 of the Act, which automatically stayed such action, was determined to be null and void and subject to collateral attack. Kalb has been cited continuously with approval, including decisions regarding violations of the automatic Stay under Sec. 362 and the injunction under Sec. 524(a). In Kalb, the court reasoned: “It is generally true that a judgment by a court of competent jurisdiction bears a presumption of regularity and is not thereafter subject to collateral attack. But Congress, because its power over the subject of bankruptcy is plenary, may by specific bankruptcy legislation create an exception to that principle and render judicial acts taken with respect to the person or property of a debtor whom the bankruptcy law protects nullities and vulnerable collaterally.... The States cannot, in the exercise of control over local law and practice, vest state courts with power to violate the supreme law of the land. The Constitution grants Congress exclusive power" } ]

[ { "docid": "1740035", "title": "", "text": "(equal protection and substantive due process), aff'd sub nom. Heyden v. Schoenfeld, 819 F.2d 1144 (7th Cir.), cert. denied, 484 U.S. 899, 108 S.Ct. 235, 98 L.Ed.2d 193 (1987); Southwestern Community Action Council v. Community Servs. Admin., 462 F.Supp. 289, 296-98 (S.D.W.Va.1978) (substantive due process); Johnson v. United States, 422 F.Supp. 958, 970-76 (N.D.Ind.1976) (substantive due process, First Amendment associational rights, and Ninth and Tenth Amendment challenges), aff'd sub nom. Barter v. United States, 550 F.2d 1239 (7th Cir.1977) (per curiam), cert. denied, 434 U.S. 1012, 98 S.Ct. 725, 54 L.Ed.2d 755 (1978). See also Austin v. Berryman, 878 F.2d 786, 787 (4th Cir.1989) (en bane) (Virginia statute denying unemployment benefits to spouse who voluntarily quit work to follow other spouse to a new locality was not a violation of substantive due process, after applying rational basis scrutiny), cert. denied, 493 U.S. 941, 110 S.Ct. 343, 107 L.Ed.2d 331 (1989); Campbell v. City of Allen Park, 829 F.2d 576, 581 (6th Cir.1987) (applying rational basis scrutiny to an equal protection and substantive due process challenge to a residency requirement impinging on the right to marry). But see Thorne v. City of El Segundo, 726 F.2d 459, 469-70 (9th Cir.1983) (applying heightened scrutiny to an inquiry into the associations of a female applicant to a police academy); Dike v. School Bd. of Orange Co., 650 F.2d 783, 787 (5th Cir. Unit B July 1981) (applying strict scrutiny to prohibition on teacher breastfeeding infant during workday); Buckley v. Coyle Public Sch. Sys., 476 F.2d 92, 96 (10th Cir.1973) (applying strict scrutiny to mandatory maternity-leave policy). These three latter cases may have involved intimate associations, but they also involved policies that infringed only on the rights of women. There is no allegation in this case that Great Oaks’s anti-nepotism policy is exclusively directed at women or disproportionately affects women. The Montgomerys, for instance, do not allege that Great Oaks’s policy always leads to the wife in a married couple being transferred. Such a policy would present a much stronger case for the application of some form of heightened scrutiny. Moreover, the Montgomerys concede" } ]

[ { "docid": "9347855", "title": "", "text": "on substantive due process. Generally, a plaintiff adequately alleges a substantive due process claim where the plaintiff pleads that a statute or government action burdens a fundamental right and cannot withstand strict scrutiny. Kallstrom v. City of Columbus, 136 F.3d 1055, 1064 (6th Cir.1998):. Montgomery v. Carr, 101 F.3d 1117, 1124 (6th Cir.1996) (holding that government actions interfering with marriage are subject to strict scrutiny). In immigration cases, however, federal courts apply a much more deferential standard of review to substantive due process challenges even where the immigration law interferes with a plaintiffs fundamental rights. Fiallo v. Bell, 430 U.S. 787, 798-99, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977). This Court upholds immigration statutes so long as they are “conceivably related to the achievement of a federal interest.” Almario v. Attorney General, 872 F.2d 147, 152 (6th Cir.1989) (denying equal protection claim that involved the “fundamental right” to marry); see also Anetekhai v. INS, 876 F.2d 1218,1222 (5th Cir.1989) (applying “minimum scrutiny” to a substantive due process claim that involved the right to marry); Barmo v. Reno 899 F.Supp. 1375, 1381 (E.D.Pa.1995) (holding a statute need only be “supported by facially legitimate and bona fide reason” where it burdened the right to marry). This standard may be even lower than rational basis review. Fiallo, 430 U.S. at 798-99, 97 S.Ct. 1473 (1977). In Fiallo, the Supreme Court stated, Appellants suggest that the distinction drawn in s[sic] 101(b)(1)(D) is unconstitutional under any standard of review since it infringes upon the constitutional rights of citizens and legal permanent residents without furthering any legitimate governmental interest .... Those are admittedly the consequences of the congressional decision not to accord preferential status to this particular class of aliens, but the decision nonetheless remains one solely for the responsibility of Congress and wholly outside the power of this Court to control.... [I]t is not the judicial role in cases of this sort to probe and test the justifications for the legislative decision. Id. (internal citations omitted). But see Azizi v. Thornburgh, 908 F.2d 1130, 1133 n. 2 (2d Cir.1990) (stating that the facially legitimate and" }, { "docid": "1812004", "title": "", "text": "is no procedural due process violation because the Petitioner’s liberty interest, if any at all, is substantially outweighed by any risk of erroneous de privation and the government’s interest in enacting § 236(c). See Eldridge, 424 U.S. at 334-36, 96 S.Ct. 893. 2. Substantive Due Process The petitioner asserts that § 236(c) violates his substantive due process rights. The court disagrees. Substantive due process prevents the government from engaging in conduct that “shocks the conscience” or interferes with rights “implicit in the concept of ordered liberty.” Salerno, 481 U.S. at 746, 107 S.Ct. 2095 (quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952)), and Palko v. Connecticut, 302 U.S. 319, 325-26, 58 S.Ct. 149, 82 L.Ed. 288 (1937). The simplest example of such a right is freedom from bodily restraint. See Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). Once government action infringes upon a “fundamental” right, the court will strike down the offending act or statute unless the infringement is narrowly tailored to serve a compelling governmental interest. See Flores, 507 U.S. at 302, 113 S.Ct. 1439. If the right at issue is not “fundamental,” however, the court will uphold the act or statute so long as it is rationally related to a legitimate governmental interest. Washington v. Glucksberg, 521 U.S. 702, 728, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). However, immigration legislation generally will withstand constitutional challenges if it is supported by “a facially legitimate and bona fide reason.” Fiallo v. Bell, 430 U.S. 787, 794, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977); see also Salerno, 481 U.S. at 745-46, 107 S.Ct. 2095. Therefore, Congress’s plenary power to enact immigration statutes like § 236(c) is subject to highly deferential review, even when subject to a constitutional challenge. Moreover, it has “long been held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321," }, { "docid": "9347851", "title": "", "text": "economy. Additionally, the district court rejected Plaintiffs’ substantive due process claim based on the fundamental right to marriage on the ground that Plaintiff failed to state a claim. According to the district court, the issue is not whether Mrs. Bangura has a right to marry, but rather, whether she has a right to be granted legal residency through her marriage to Mr. Bangura. Plaintiffs now appeal the district court’s ruling. II. DISCUSSION A. Plaintiffs’ Constitutional Claims 1. Standard of Review This Court reviews a district court’s order dismissing a claim for lack of jurisdiction or failure to state a claim de novo. Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.2002); Haio v. INS, 199 F.3d 302, 304 (6th Cir.1999). 2. Analysis a. Jurisdiction The Plaintiffs’ failure to exhaust their administrative remedies does not deprive this Court or the district court of subject matter jurisdiction, and the district court abused its discretion in dismissing Plaintiffs’ constitutional claims for failure to exhaust their administrative remedies in the name of judicial economy. Where a statute requires a plaintiff to exhaust his or her administrative remedies before seeking judicial review, federal courts do not have subject matter jurisdiction to review the plaintiffs claim until the plaintiff has exhausted his or her administrative remedies. Perkovic v. INS, 33 F.3d 615, 619 (6th Cir.1994) (stating that while exhaustion is prudential in most cases, it is jurisdictional where Congress has placed it in the statute granting federal courts jurisdiction). “However, the Supreme Court has long held that ... the exhaustion requirement is far from absolute. Of paramount importance to any exhaustion inquiry is congressional intent.... [Wjhere Congress has not clearly required exhaustion, sound judicial discretion governs.” Dixie Fuel Co. v. Comm’r of Social Security, 171 F.3d 1052, 1058-59 (6th Cir.1999) (quoting McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992)). Exhaustion of administrative remedies may not be required in cases of non-frivolous constitutional challenges to an agency’s procedures. Southern Ohio Coal Co. v. Office of Surface, Mining, Reclamation and Enforcement, 20 F.3d 1418, 1425 (6th Cir.1994). In the immigration" }, { "docid": "5650828", "title": "", "text": "contest. Although the government accepts that legal proposition, it and Patel do not agree as to the appropriate level of substantive due process scrutiny. Patel argues that the statute deprives him of a fundamental liberty interest, which requires this court to apply heightened due process scrutiny. Specifically, he argues that government detention without an individualized determination infringes on his fundamental right to liberty and violates substantive due process unless the detention is ordered in “certain special and ‘narrow1 non-punitive ‘circumstances,’ ” Appellant’s Br. at 11 (citing Zadvydas, 121 S.Ct. at 2499), and is not “ ‘excessive in relation to’ the purposes it is intended to serve.” Appellant’s Br. at 11 (citing United States v. Salerno, 481 U.S. 739, 747, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). The government argues that the liberty interest of a criminal alien is not a fundamental right, relying on the decision in Parra where the court stated that the alien’s chance of success in the removal proceedings is so minimal as to verge on the nonexistent. 172 F.3d at 958. The government argues that the alien’s interest is the right to be free of “arbitrary” detention which is “subject to only limited judicial review” because an alien is entitled to a lesser due process right than a citizen. Appellee’s Br. at 6 (citing Doherty v. Thornburgh, 943 F.2d 204, 209 (2d Cir. 1991)). It is undisputed that Congress has plenary power to create substantive immigration law to which the judicial branch generally must defer. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 589-90, 72 S.Ct. 512, 96 L.Ed. 586 (1952). As the Supreme Court has stated, “in the exercise of its broad power over immigra tion and naturalization, ‘Congress regularly makes rules that would be unacceptable if applied to citizens.’ ” Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (quoting Mathews v. Diaz, 426 U.S. 67, 80, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976)). However, Congress’ power is subject to constitutional limitations, including due process constraints. Zadvydas, 121 S.Ct. at 2501. The Supreme Court recently addressed this issue in" }, { "docid": "9457781", "title": "", "text": "6. the statute is arbitrary and capricious on its face and as applied, 7. the statute creates a suspect class among aliens, 8. the statute violates the right of privacy, 9. the statute is arbitrary and discriminatory as applied and violates equal protection, and 10. the statute as applied to plaintiffs is an ex post facto law. Defendants have moved to dismiss this action on the ground that the complaint fails to state a claim upon which relief can be granted. At the outset, the Court notes that immigration laws are subject only to limited judicial review. The United States Supreme Court has repeatedly emphasized that \"over no conceivable subject is the legislative power of Congress more complete than it is over” admission of aliens. Our cases “have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) (citations omitted). A deferential review is employed even where fundamental constitutional rights, including those rights at issue in the present case, are at stake. Id. The role of the court in determining a constitutional challenge to a federal immigration law is limited to a determination whether the statute is “conceivably related to the achievement of a legitimate federal interest.” Smith v. INS, 684 F.Supp. 1113, 1116 (D.Mass.1988). Turning first to plaintiffs’ arguments that section 1154(h) violates their rights under the First, Fifth, and Ninth Amendments, the Courts which have considered these arguments have resoundingly rejected such constitutional challenges. Escobar v. INS, 700 F.Supp. 609 (D.D.C.1988); Anetekhai v. INS, 685 F.Supp. 599 (E.D.La.1988); Smith v. INS, 684 F.Supp. 1113 (D.Mass.1988). Several courts have determined that plaintiffs’ arguments regarding equal protection, due process, and infringement of the right to privacy are directly controlled by the Supreme Court’s decision in Fiallo, supra. Fiallo involved a challenge under the First, Fifth and Ninth Amendments of legislation denying immediate relative status to illegitimate alien children of a citizen father, but permitting such status to illegitimate alien children" }, { "docid": "9347850", "title": "", "text": "Hansen, used the 1998 fraud finding to deny Mr. Bangura’s petition. Plaintiffs argue that the administrative rules prohibit them from appealing the 1998 decision to the Board of Immigration Appeals (“BIA”), and thus, collateral use of the 1998 fraud finding deprives them of procedural due process, interferes with their marriage in violation of substantive due process, and is contrary to the INA in violation of the APA. Plaintiffs also claim that the 1998 fraud finding was not supported by substantial evidence. Defendants moved to dismiss Plaintiffs’ complaint on the ground that the district court lacked subject matter jurisdiction because Mr. Bangura has failed to exhaust administrative remedies on his 1-130 petition, and on the ground that the complaint failed to state a claim for relief. Thereafter, the district court dismissed Plaintiffs’ procedural due process claim holding that although Plaintiffs’ failure to exhaust administrative remedies on the INS’ denial of his 1-130 petition did not deprive the court of subject matter jurisdiction, it nonetheless rendered the exercise of its own jurisdiction inappropriate for reasons of judicial economy. Additionally, the district court rejected Plaintiffs’ substantive due process claim based on the fundamental right to marriage on the ground that Plaintiff failed to state a claim. According to the district court, the issue is not whether Mrs. Bangura has a right to marry, but rather, whether she has a right to be granted legal residency through her marriage to Mr. Bangura. Plaintiffs now appeal the district court’s ruling. II. DISCUSSION A. Plaintiffs’ Constitutional Claims 1. Standard of Review This Court reviews a district court’s order dismissing a claim for lack of jurisdiction or failure to state a claim de novo. Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.2002); Haio v. INS, 199 F.3d 302, 304 (6th Cir.1999). 2. Analysis a. Jurisdiction The Plaintiffs’ failure to exhaust their administrative remedies does not deprive this Court or the district court of subject matter jurisdiction, and the district court abused its discretion in dismissing Plaintiffs’ constitutional claims for failure to exhaust their administrative remedies in the name of judicial economy. Where a statute" }, { "docid": "9347857", "title": "", "text": "bona fide reason test is the same as the rational basis test). The limited role of courts in reviewing the substantive policy embodied in immigration statutes derives from the Constitution’s grant of plenary power to exclude aliens to Congress. See, e.g., Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) (noting that an alien’s initial admission into the United States is a privilege and wholly within the sovereign’s power to exclude aliens); Fiallo, 430 U.S. at 792, 97 S.Ct. 1473; Galvan v. Press, 347 U.S. 522, 529, 531-32, 74 S.Ct. 737, 98 L.Ed. 911 (1954) (holding that while aliens may receive procedural due process, the court’s ability to review the substantive policy of immigration statutes is limited to review for rationality). The Supreme Court has “long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.... [T]he power over aliens is of a political character and therefore subject to only narrow judicial review.” Fiallo, 430 U.S. at 792, 97 S.Ct. 1473 (citations omitted). In this case, the statute in question, 8 U.S.C. § 1154(c), easily withstands this deferential standard of review. Section 1154(c) denies aliens immediate relative visas when they marry American citizens for the purpose of obtaining U.S. residence. 8 U.S.C. § 1154(c). Congress presumably enacted § 1154(c) to prevent immigration fraud, which is a legitimate federal interest. Thus, § 1154(c) is “conceivably related to a federal interest,” and this Court must uphold its constitutionality even assuming Plaintiffs have established that it interferes with their fundamental right to marry. See Almario, 872 F.2d at 152. ii. Procedural Due Process Similarly, Plaintiffs failed to a state a procedural due process claim be cause Plaintiffs failed to properly allege a liberty or property interest. The Fourteenth Amendment prohibits the government from depriving persons of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Due Process Clause protects aliens physically present in the United States as well as citizens. Landon, 459 U.S. at 32-33, 103 S.Ct." }, { "docid": "9347858", "title": "", "text": "at 792, 97 S.Ct. 1473 (citations omitted). In this case, the statute in question, 8 U.S.C. § 1154(c), easily withstands this deferential standard of review. Section 1154(c) denies aliens immediate relative visas when they marry American citizens for the purpose of obtaining U.S. residence. 8 U.S.C. § 1154(c). Congress presumably enacted § 1154(c) to prevent immigration fraud, which is a legitimate federal interest. Thus, § 1154(c) is “conceivably related to a federal interest,” and this Court must uphold its constitutionality even assuming Plaintiffs have established that it interferes with their fundamental right to marry. See Almario, 872 F.2d at 152. ii. Procedural Due Process Similarly, Plaintiffs failed to a state a procedural due process claim be cause Plaintiffs failed to properly allege a liberty or property interest. The Fourteenth Amendment prohibits the government from depriving persons of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Due Process Clause protects aliens physically present in the United States as well as citizens. Landon, 459 U.S. at 32-33, 103 S.Ct. 321; Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). Due process rights only attach, however, once a plaintiff asserts a liberty or property interest. See also Almario, 872 F.2d at 151. To establish a liberty or property interest, the plaintiff must demonstrate that the Constitution or a federal or state statute grants him a protected right. See Almario, 872 F.2d at 151. In this case, Plaintiffs assert that the Constitution grants them a liberty interest in their marriage, and thus, that the government must give them due process before denying Mrs. Bangura a visa. While this Court recognizes that the Ban-guras have a fundamental right to marry, it does not agree with Plaintiffs’ characterization of the nature of the government’s infringement. A denial of an immediate relative visa does not infringe upon their right to marry. As this Court stated in Almario, “[t]he Constitution does not recognize the right of a citizen spouse to have his or her alien spouse remain in the country.” Almario, 872 F.2d at 151." }, { "docid": "22099465", "title": "", "text": "the IJ are reviewed for substantial evidence and will be upheld “unless the evidence compels a contrary conclusion.” Hernandez-Montiel v. INS, 225 F.3d 1084, 1090-91 (9th Cir.2000) (internal quotation marks and citation omitted). Other standards of review are indicated below. III. DISCUSSION A. Due Process Munoz contends that because he has resided in the United States virtually his entire life and his only family and friends live in the United States, removing him to Guatemala would amount to a violation of due process. Essentially, he argues that he has acquired a substantive due process right to stay in the United States due to his unique circumstances. We review constitutional challenges to application of a statute de novo. Eunique v. Powell, 302 F.3d 971, 974 (9th Cir.2002). The substantive due process argument fails. In the immigration context, courts have “long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 97 L.Ed. 956 (1953); see also Fiallo v. Bell, 430 U.S. 787, 794, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977); Duldulao v. INS, 90 F.3d 396, 399 (9th Cir.1996). Since discretionary relief is a privilege created by Congress, denial of such relief cannot violate a substantive interest protected by the Due Process clause. See INS v. Yang, 519 U.S. 26, 30, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996) (recognizing the Attorney General’s “unfettered discretion” to award suspension of deportation); Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1165 (9th Cir.2002) (because “the very liberty interest he asserts to have been taken away by NACARA was granted by that same statute[,] ... [he] cannot contend that [it] violated due process by depriving him of a right he never had”); Tefel v. Reno, 180 F.3d 1286, 1301 (11th Cir.1999) (“[n]o constitutionally protected interest arises from the INS’ actions in granting or denying applications for suspension”). Notwithstanding Munoz’s unique circumstances, he has no substantive due process right to stay in the United States. B. Ineffective Assistance of Counsel" }, { "docid": "23255085", "title": "", "text": "As an illegal alien he has no right to continue to reside in the United States. Moreover, eligibility for suspension is not a right protected by the Constitution. Suspension of deportation is rather an “act of grace” that rests in the “unfettered discretion” of the Attorney General. INS v. Yueh-Shaio Yang, 519 U.S. 26, 30, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996) (internal quotation marks omitted). Because suspension of deportation’ is discretionary, it does not create a protectible liberty or property interest. Indeed, “a constitutionally protected interest cannot arise from relief that the executive exercises unfettered discretion to award.” Tefel, 180 F.3d at 1300. This is true even where the state “frequently” has granted the relief sought. See Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981). Moreover, judicial review over federal immigration legislation has always been limited. See Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977). The Supreme Court has “long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Shaughnessy v. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 97 L.Ed. 956 (1953). “The reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.” Mathews v. Diaz, 426 U.S. 67, 81-82, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). In fact, the “constraints of rationality imposed by the constitutional requirement of substantive due process and of nondiscrimination exacted by the equal protection component of the due process clause do not limit the federal government’s power to regulate either immigration or naturalization.” In re Longstaff, 716 F.2d 1439, 1442-43 (7th Cir.1983). The stop-time rule is rationally grounded. Congress enacted the rule to remove an alien’s incentive for prolonging deportation proceedings in order to become eligible for suspension. See H.R.Rep. No. 104-469(1) (1996) (“Suspension of deportation is often abused by aliens seeking to delay proceedings until 7 years have accrued.”). Removing" }, { "docid": "22099466", "title": "", "text": "S.Ct. 625, 97 L.Ed. 956 (1953); see also Fiallo v. Bell, 430 U.S. 787, 794, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977); Duldulao v. INS, 90 F.3d 396, 399 (9th Cir.1996). Since discretionary relief is a privilege created by Congress, denial of such relief cannot violate a substantive interest protected by the Due Process clause. See INS v. Yang, 519 U.S. 26, 30, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996) (recognizing the Attorney General’s “unfettered discretion” to award suspension of deportation); Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1165 (9th Cir.2002) (because “the very liberty interest he asserts to have been taken away by NACARA was granted by that same statute[,] ... [he] cannot contend that [it] violated due process by depriving him of a right he never had”); Tefel v. Reno, 180 F.3d 1286, 1301 (11th Cir.1999) (“[n]o constitutionally protected interest arises from the INS’ actions in granting or denying applications for suspension”). Notwithstanding Munoz’s unique circumstances, he has no substantive due process right to stay in the United States. B. Ineffective Assistance of Counsel Munoz argues that his attorney ineptly cost him his chance to gain asylum by pressuring him to abandon his asylum application, thereby violating his procedural due process rights. “ ‘Ineffective assis tance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.’ ” Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir.1999) (quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985)). The petitioner must show prejudice from counsel’s alleged deficient performance. Prejudice results when “the performance of counsel was so inadequate that it may have affected the outcome of the proceedings.” Ortiz, 179 F.3d at 1153(citation omitted). Claims of due process violations in INS proceedings are reviewed de novo. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002). Munoz fails to demonstrate either deficient performance or the required prejudice. If Munoz’s asylum application had merit, it might well have been unreasonable and prejudicial for his attorney to pressure him to drop" }, { "docid": "9347882", "title": "", "text": "her APA claim and affirm the district court’s dismissal. III. CONCLUSION For the reasons set forth above, we AFFIRM the district court’s dismissal of all of Plaintiffs’ claims. . We address exhaustion under jurisdiction because Defendants argue that Plaintiffs' failure to exhaust administrative remedies deprives this Court of subject matter jurisdiction. Thus, this Court must address whether failure to exhaust deprives this Court of jurisdiction as a threshold matter. Steel Co. v. Citizens For a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citing Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884)) (\"The requirement that jurisdiction be established as a threshold matter 'spring[s] from the nature and limits of judicial power of the United States’ and is 'inflexible and without exception.' ”). We note, however, that exhaustion is primarily a prudential doctrine and failure to exhaust only deprives this Court of subject matter jurisdiction when exhaustion is required by a jurisdictional statute. Perkovic v. INS, 33 F.3d 615, 619 (6th Cir.1994). . There is a decent amount of support for the proposition that § 1154(b) creates an interest to which procedural due process rights attach. Supreme Court precedent makes clear that non-discretionary statutes create property interests for the purpose of procedural due process. Town of Castle Rock v. Gonzales, - U.S. -, 125 S.Ct. 2796, 2803, 162 L.Ed.2d 658 (2005) (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). Section 1154(b) states that the Attorney General, “shall ... approve the petition [for immediate relative visa].” 8 U.S.C. § 1154(b) (emphasis added). The D.C. circuit explicitly held that this language created a right protected by procedural due process. Escobar v. INS, 896 F.2d 564 (D.C.Cir.1990). Additionally, Fifth. Circuit dicta implied that it would uphold a due process claim under § 1154(b). Anetekhai v. INS, 876 F.2d 1218, 1223 (5th Cir.1989). In rejecting a substantive due process challenge to § 1154(h), the section at issue in Almario, the court stated, \"[cjertainly, if Congress had conditioned an" }, { "docid": "9347854", "title": "", "text": "whether Plaintiffs should be required to exhaust their administrative remedies is a matter of sound judicial discretion. See Dixie Fuel Co., 171 F.3d at 1058-59. Here, requiring Plaintiffs to exhaust their administrative remedies does not serve the interests of judicial economy. Although the BIA undoubtedly could grant Plaintiffs some relief and possibly render Plaintiffs’ procedural due process claim moot, it does not have the authority to adjudicate Plaintiffs’ substantive due process claim. Akinwunmi, 194 F.3d at 1341. Moreover, as discussed infra at Section II, this Court must address the merits of one of Plaintiffs’ APA claims. It does not serve the interests of judicial economy to dismiss Plaintiffs’ claims for failure to exhaust when the federal courts must nonetheless hear other claims that are integrally related to the dismissed claims. Therefore, the district court abused its discretion in dismissing Plaintiffs’ procedural due process claim for failure to exhaust administrative remedies. b. Failure to State a Claim i. Substantive Due Process The district court correctly held that Plaintiffs failed to state a claim for relief based on substantive due process. Generally, a plaintiff adequately alleges a substantive due process claim where the plaintiff pleads that a statute or government action burdens a fundamental right and cannot withstand strict scrutiny. Kallstrom v. City of Columbus, 136 F.3d 1055, 1064 (6th Cir.1998):. Montgomery v. Carr, 101 F.3d 1117, 1124 (6th Cir.1996) (holding that government actions interfering with marriage are subject to strict scrutiny). In immigration cases, however, federal courts apply a much more deferential standard of review to substantive due process challenges even where the immigration law interferes with a plaintiffs fundamental rights. Fiallo v. Bell, 430 U.S. 787, 798-99, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977). This Court upholds immigration statutes so long as they are “conceivably related to the achievement of a federal interest.” Almario v. Attorney General, 872 F.2d 147, 152 (6th Cir.1989) (denying equal protection claim that involved the “fundamental right” to marry); see also Anetekhai v. INS, 876 F.2d 1218,1222 (5th Cir.1989) (applying “minimum scrutiny” to a substantive due process claim that involved the right to marry); Barmo" }, { "docid": "23006227", "title": "", "text": "High Sch. Dist. No. 225, 158 F.3d 962, 965 (7th Cir.1998) (citing Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)). Accordingly, substantive due process is not “a blanket protection against unjustifiable interferences with property.” Schroeder v. City of Chicago, 927 F.2d 957, 961 (7th Cir.1991). Unless a governmental practice encroaches on a fundamental right, substantive due process requires only that the practice be rationally related to a legitimate government interest, or alternatively phrased, that the practice be neither arbitrary nor irrational. See Glucksberg, 521 U.S. at 728, 117 S.Ct. 2258. And when a substantive-due-process challenge involves only the deprivation of a property interest, a plaintiff must show “either the inadequacy of state law remedies or an independent constitutional violation” before the court will even engage in this deferential rational-basis review. Doherty v. City of Chicago, 75 F.3d 318, 323-26 (7th Cir.1996); see also Wudtke v. Davel, 128 F.3d 1057, 1062 (7th Cir.1997) (“[I]n cases where the plaintiff complains that he has been unreasonably deprived of a state-created property interest, without alleging a violation of some other substantive constitutional right or that available state remedies are inadequate, the plaintiff has not stated a substantive due process claim.” (quotations omitted)). Because Lee’s substantive-due-process claim does not implicate a fundamental right and involves only the deprivation of a property interest, he must show as an initial matter either that state-law remedies are inadequate or that an independent constitutional right has been violated. Doherty, 75 F.3d at 325-26. Indeed, we recently rejected similar substantive-due-process claims by vehicle owners who alleged that the City had wrongfully held their vehicles at an auto pound and had damaged the vehicles during the towing and storage process because the plaintiffs failed to make either of these requisite showings. Gable v. City of Chicago, 296 F.3d 531, 541 (7th Cir.2002); see also Holstein v. City of Chicago, 29 F.3d 1145, 1149 (7th Cir.1994) (dismissing plaintiffs substantive-due-process challenge to city’s post-tow administrative proceedings because “in order to properly allege a violation of substantive due process, the plaintiff must at least show ‘either a separate constitutional" }, { "docid": "15736615", "title": "", "text": "another balancing test. In the words of Justice Black: The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. New York Times, 403 U.S. at 719, 91 S.Ct. 2140 (Black, J., concurring). The Government cites other cases that it claims support its view that even procedural immigration laws are entitled to a deferential standard of review. However, those cases involve either substantive immigrations laws determining who gets deported, see Almario v. Attorney General, 872 F.2d 147 (6th Cir.1989) (requiring deportation of persons married during their deportation proceedings), or non-substantive immigration laws where no constitutional right was recognized. See Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (finding that the authority of the Executive to determine whether, and on what terms, a detained non-citizen should be released pending a hearing implicates no fundamental right or other Constitutional protection). Here, however, we are faced with a strictly non-substantive regulation that could impact greatly upon a First Amendment right. Other courts of appeals have similarly held that courts may review immigration procedures with greater scrutiny than substantive immigration decisions or laws. See Hoang v.Comfort, 282 F.3d 1247, 1257-58 (10th Cir.2002); Zamora-Garcia v. INS, 737 F.2d 488, 490-92 (5th Cir.1984); see also Rodriguez-Reyes v. INS, 983 F.2d 1068 (6th Cir.1993) (per curiam). c. The Government’s Remaining Argument Finally, the Government argues that this distinction between substantive and non-substantive immigration laws “fails to acknowledge that procedural requirements often reflect, and encompass, substantive choices” and that it “makes no sense.” See Gov’t Brief at 25. This contention strikes us as profoundly undemocratic in that it ignores the basic concept of checks and balances. More fundamentally, though, were the political branches’ decisions not subject to certain basic procedural requirements, the government could act arbitrarily and behind closed doors, leaving unsettled the lives of thousands of immigrants. Even though the political branches may have unfettered discretion to deport" }, { "docid": "23303007", "title": "", "text": "process rights of the plaintiff.” i. Official Capacity Grinter names the defendants to the § 1983 claim in both their individual and official capacities. The district court dismissed the claims against the defendants in their official capacities as barred by the Eleventh Amendment. “[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). The Eleventh Amendment bars suits brought in federal court against a state and its agencies unless the state has waived its sovereign immunity or consented to be sued in federal court. Id. at 66, 109 S.Ct. 2304. See also Abick v. Michigan, 803 F.2d 874, 876-77 (6th Cir.1986). All of the defendants are state employees and Kentucky has not waived its sovereign immunity. To the extent they are sued in their official capacities, the § 1983 claim fails. ii. Individual Capacity Grinter alleges his substantive due process rights were violated when he was placed under four-point restraints for four hours, when prison adjustment procedures were not followed at his disciplinary hearing, and when the adjustment committee did not comply with the Kentucky statute authorizing good-time credits. The district court dismissed each of these claims for failure to state a claim. The Due Process Clause of the Fourteenth Amendment provides that a person may not be deprived of “life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV. “The doctrine that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed has come to be known as substantive due process.” Bowers v. City of Flint, 325 F.3d 758, 763 (6th Cir.2003) (citation omitted). “These limitations are meant to provide heightened protection against government interference with certain fundamental rights and liberty interests.” Does v. Munoz, 507 F.3d 961, 964 (6th Cir.2007) (internal quotation marks and citations omitted). “However, identifying a new fundamental right subject to the protections of substantive due process" }, { "docid": "9347883", "title": "", "text": "Cir.1994). . There is a decent amount of support for the proposition that § 1154(b) creates an interest to which procedural due process rights attach. Supreme Court precedent makes clear that non-discretionary statutes create property interests for the purpose of procedural due process. Town of Castle Rock v. Gonzales, - U.S. -, 125 S.Ct. 2796, 2803, 162 L.Ed.2d 658 (2005) (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). Section 1154(b) states that the Attorney General, “shall ... approve the petition [for immediate relative visa].” 8 U.S.C. § 1154(b) (emphasis added). The D.C. circuit explicitly held that this language created a right protected by procedural due process. Escobar v. INS, 896 F.2d 564 (D.C.Cir.1990). Additionally, Fifth. Circuit dicta implied that it would uphold a due process claim under § 1154(b). Anetekhai v. INS, 876 F.2d 1218, 1223 (5th Cir.1989). In rejecting a substantive due process challenge to § 1154(h), the section at issue in Almario, the court stated, \"[cjertainly, if Congress had conditioned an alien's eligibility for a status adjustment on the existence of a bona fide marriage, procedural due process would require that the couple be given an opportunity to establish that fact before an adjustment could be denied.” Id. If this right exists, however, it clearly belongs to the citizen spouse and not the alien spouse. Wright v. INS, 379 F.2d 275, 276 (6th Cir.1967) (holding that an alien spouse has no protected interest in an 1-130 petition). . Nonetheless, this Court can address Plaintiffs' failure to state a claim because this Court may uphold a district court’s order on any ground supported by the record. City Mgmt. Corp. v. U.S. Chemical Corp., 43 F.3d 244, 251 (6th Cir.1994). . The government’s argument that only the citizen spouse has \"standing” to appeal to the BIA under the INA is irrelevant to Plaintiffs’ standing to sue in federal district court under the APA. Ghaly v. INS, 48 F.3d 1426, 1434 n. 6 (7th Cir.1995). The cases the government cites discuss the authority of the BIA to hear an" }, { "docid": "22914294", "title": "", "text": "II. JURISDICTION The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. III. STANDARD OF REVIEW We review de novo the district court’s dismissal for failure to state a claim pursuant to Rule 12(b)(6). See Tworivers v. Lewis, 174 F.3d 987, 991 (9th Cir.1999). We must “accept all factual allegations of the complaint as true and draw all reasonable inferences in favor of the nonmoving party.” Id. “Conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim.” Halkin v. VeriFone, Inc. (In re VeriFone Securities Litigation), 11 F.3d 865, 868 (9th Cir.1993). In determining whether plaintiffs can prove facts in support of their claim that would entitle them to relief, we may consider facts contained in documents attached to the complaint. See Roth v. Garcia Marquez, 942 F.2d 617, 625 n. 1 (9th Cir.1991) (citing Burning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987)). IV.DISCUSSION Plaintiffs allege that California’s mental health licensing laws abridge their Fourteenth Amendment substantive due process and equal protection rights and their First Amendment rights of speech and association. We affirm the district court’s dismissal because we hold that plaintiffs have failed to state any claim for constitutional relief. A Fourteenth Amendment To withstand Fourteenth Amendment scrutiny, a statute is required to bear only a rational relationship to a legitimate state interest, unless it makes a suspect classification or implicates a fundamental right. See City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) (per curiam) (equal protection); Richardson v. City & County of Honolulu, 124 F.3d 1150, 1162 (9th Cir.1997), cert. denied, 525 U.S. 871, 119 S.Ct. 168, 142 L.Ed.2d 137 (1998) (substantive due process). 1. Fundamental Right Because psychoanalysts are not a suspect class entitled to heightened scrutiny, we must examine whether the licensing scheme implicates any fundamental right. We hold that it does not. Plaintiffs contend that California’s mental health licensing laws are subject to strict scrutiny under the Due Process Clause of" }, { "docid": "9347853", "title": "", "text": "context, several circuits have indicated that “constitutional challenges to the INA and INS procedures and some due process claims do not require exhaustion because the BIA does not have the power to adjudicate these claims.” Sundar v. INS, 328 F.3d 1320, 1325 (11th Cir.2003) (citing Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir.1999); Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999); Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.1998); Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994)). In this case, the district court erred in holding that Plaintiffs were required to exhaust their administrative remedies before filing in federal court. It is undisputed that no statute or administrative rule required Plaintiffs to exhaust their administrative remedies. See 8 § C.F.R. 103.3(a)(ii) (providing that a petitioner “may” appeal to the BIA); Hoang v. Comfort, 282 F.3d 1247, 1254 (10th Cir.2002), abrogated on other grounds, Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (noting that the INA only requires plaintiffs to exhaust administrative remedies in removal proceedings). Thus, whether Plaintiffs should be required to exhaust their administrative remedies is a matter of sound judicial discretion. See Dixie Fuel Co., 171 F.3d at 1058-59. Here, requiring Plaintiffs to exhaust their administrative remedies does not serve the interests of judicial economy. Although the BIA undoubtedly could grant Plaintiffs some relief and possibly render Plaintiffs’ procedural due process claim moot, it does not have the authority to adjudicate Plaintiffs’ substantive due process claim. Akinwunmi, 194 F.3d at 1341. Moreover, as discussed infra at Section II, this Court must address the merits of one of Plaintiffs’ APA claims. It does not serve the interests of judicial economy to dismiss Plaintiffs’ claims for failure to exhaust when the federal courts must nonetheless hear other claims that are integrally related to the dismissed claims. Therefore, the district court abused its discretion in dismissing Plaintiffs’ procedural due process claim for failure to exhaust administrative remedies. b. Failure to State a Claim i. Substantive Due Process The district court correctly held that Plaintiffs failed to state a claim for relief based" }, { "docid": "13034521", "title": "", "text": "the appellants’ suggestion that, based on that fact, a more searching judicial scrutiny was required. Instead, the Court applied only minimum scrutiny in analyzing the statute. Noting that, with respect to each legislative policy distinction drawn in the area of immigration, “it could be argued that the line should have been drawn at a different point,” the Court wrote that “these are policy questions entrusted exclusively to the political branches of our Government and we have no judicial authority to substitute our political judgment for that of Congress .... [I]t is not the judicial role in cases of this sort to probe and test the justifications for the legislative decision.” Id. at 798-99, 97 S.Ct. at 1481-82. Of prime importance in the Court’s decision to review the INA provisions challenged in Fiallo with such deference was its conclusion that at issue there were the rights of the alien children, not the rights of United States citizens. Indeed, it was this very point which divided the majority from the dissent. Fiallo, 430 U.S. at 795 n. 6, 97 S.Ct. at 1479 n. 6. Similarly, in this case we are concerned with whatever rights Mr. Anetekhai, the alien spouse, may possess — not the rights of Mrs. Anetekhai. That Mrs. Anetekhai asserts her fundamental right to marry here does not alter our analysis. In Fiallo, the Supreme Court, too, was dealing with the citizens’ fundamental interests in familial relationships. Applying the deferential standard of review articulated in Fiallo to the case before us, we have no difficulty in concluding that § 1154(h) passes constitutional muster. The Anetekhais admit that Congress has a strong and legitimate interest in deterring marriages which are entered into for the purpose of obtaining immigration benefits. We, like the other courts that have considered this issue, believe that Congress logically could have concluded that aliens who are engaged in deportation proceedings are more likely than aliens not so situated to enter into fraudulent marriages as a means of avoiding expulsion from the United States. See, e.g., Almario v. INS, 872 F.2d 147 (6th Cir.1989); Escobar v. INS, 700" } ]

[ { "docid": "17012576", "title": "", "text": "article is not automatically entitled to a cause of action against the original seller for breach of warranty. There must be a contract of assignment of rights to entitle the subsequent purchaser to this cause of action. See generally 8 S. Williston, A Treatise on the Law of Contracts § 998 (3d ed. 1961 supp. 1985). An assignment generally requires the underlying elements of a valid contract, including intent. 6A C.J.S. Assignments § 43 (1975); see generally Springer v. J.R. Clark Co., 138 F.2d 722, 726 (8th Cir.1943); Guaranty State Bank of St. Paul v. Lindquist, 304 N.W.2d 278, 280-81 (Minn.1980); Pillsbury Investment Co. v. Otto, 65 N.W.2d 913 (Minn.1954). Whether or not an assignment oc curred is a question of fact for the trial court. See 6A C.J.S. Assignments § 57 (1975) (assignment is a contract); Capital Warehouse Co., Inc. v. McGill-Warner-Farnham Co., 149 N.W.2d 31, 35 (Minn.1967) (whether parties entered into contract is a question of fact). There is no evidence in the record of intent to assign Armour’s warranty rights against Simmons. The mere sale of the plant did not create a warranty assignment. Although the sales agreement specifically listed certain of Armour’s rights against third parties as assigned to Gold’n Plump, it made no reference to rights against Simmons. The omission of this assignment clearly indicates that Gold’n Plump did not intend to reserve a right of direct action against Simmons. We note further that the parties negotiating the plant sale agreement were fully aware of the problems with the venter opener machines. Accordingly, we affirm the district court’s conclusion of no valid assignment. 2. Implied Warranty of Fitness for a Particular Purpose: Alter Ego Theory. Gold’n Plump claims that it is entitled to recover under the implied warranty of fitness for a particular purpose which arose at the time of the original December sale of the machines. It contends that Simmons knew the machines were intended for use on large-sized Minnesota chickens, giving rise to an implied warranty of fitness for a particular purpose. It argues that because of its close relationship to Armour, in" } ]

[ { "docid": "2490939", "title": "", "text": "implied warranties. In its original responsive brief, plaintiff only argued that factual issues remained on whether defendant’s limited remedy of repair or replacement had failed of its essential purpose. In its supplemental response, plaintiff makes a cursory reference to the defense of over-reaching and then later outlines its warranty claims so as to include a claim for breach of the express warranty of material and workmanship. Mass.Gen.L. ch. 106, § 2-316(1) limits the circumstances under which express warranties may be excluded. This same provision is expressly subject to the parol evidence rule found at Mass.Gen.L. ch. 106, § 2-202. As a result, if the final integrated written expression contains a clause disclaiming all express and implied warranties, any prior or contemporaneous oral express warranties are effectively excluded. Agristor Leasing v. Meuli, 634 F.Supp. 1208, 1219 (D.Kan.1986); B. Clark and C. Smith, The Law of Product Warranties, ¶ 8.02[3] (1984). Regarding implied warranties, Mass.Gen.L. ch. 106, § 2-316(2) sets forth the requirements for their exclusion — conspicuous and in writing. Plaintiff does not challenge this disclaimer on either requirement. Plaintiff’s apparent impression of the law is that when a limited remedy fails of its essential purpose the disclaimed warranties are revived. This view confuses the distinction made in the Code between disclaimers of warranties (2-316) and limitations of remedies (2-719). Though related, these concepts are different in that disclaimers attempt to limit the circumstances of liability while remedy limitations restrict the buyer to certain forms of relief. Clark, Product Warranties, II 8.01. When a limited remedy fails of its essential purpose, 2-719(2) abrogates only the remedy limitation and not the warranty disclaimers. This distinction is further emphasized in the official comment 3 to 2-719, where after explaining that clauses limiting consequential damages may be unconscionable, it states: “The seller in all cases is free to disclaim warranties in the manner provided in Section 2-316.” Consequently, disclaimers valid under 2-316 are also valid under 2-719. Hall v. Shearson Lehman Hutton, Inc., 708 F.Supp. 711, 712 (D.Md.1989). Despite any argument that the limited remedy failed of its essential purpose, plaintiff is bound by" }, { "docid": "17691491", "title": "", "text": "provisions. Upon receipt of a Big Bud purchase order, Twin Disc would send an order acknowledgment form to Big Bud with Twin Disc’s limited warranty and disclaimer of all other warranties printed on the reverse side. The district court held that even though Twin Disc’s order acknowledgment forms stated these additional terms, they were valid acceptances, see Wis.Stat. § 402.207(1), and thus that the parties had entered into a series of contracts for the sale of transmissions. Once it determined that the parties had validly contracted for the sale of goods, the district court had to decide whether Twin Disc’s disclaimer of implied warranties was a part of those contracts. Section 2-207 of the UCC, as adopted in Wisconsin, provides that when an acceptance states terms additional to those offered or agreed upon, the additional terms become part of the contract between merchants unless, inter alia, the additional terms materially alter the contract. Wis.Stat. § 402.207(2)(b). If the additional terms materially alter the original bargain, they will not be deemed part of the contract unless expressly agreed to by the other party. Id. comment 3. As the district court recognized, warranty disclaimers constitute material alterations of a contract. See Air Products & Chemicals, Inc. v. Fairbanks Morse, Inc., 58 Wis.2d 193, 214, 206 N.W.2d 414, 425 (1973); Wis.Stat. § 402.207 comment 4. The court found, however, that Big Bud expressly assented to the additional terms “by unequivocal behavior, clearly indicating a willingness to be bound by the terms.” The district court relied on the facts that: (1) Big Bud had actual knowledge of the warranty terms, (2) Big Bud made inquiries regarding the warranty, (3) there was some evidence that Big Bud assigned the warranty to its own customers by telling them to contact Twin Disc direct ly concerning any defects in the transmissions, and (4) Big Bud invoked the warranty on many occasions and processed over 210 claims under it. Although the question is a close one, we affirm the district court’s finding that this is the kind of explicit course of conduct that qualifies as express assent. Big" }, { "docid": "3367238", "title": "", "text": "and limitation of liability for consequential damages as set forth in B & W’s Proposal P8-6533C are part of the contract between Dravo and B & W. The Court further concludes that the commercial terms of the contract were not altered in February 1971, when Dravo attempted to modify the contract through the inclusion of its own commercial terms in the February 15, 1971 confirming purchase order. As B & W objected in writing within a reasonable time to any modifications of the existing contractual provisions, see UCC 2-207(2)(c), Dravo did not carry its statutory burden and its attempt to modify the contract failed. C. Meaning and Effect of the Disclaimer of Warranties and Consequential Damages Clauses (1) The Warranty Clause The warranty clause of the contract, which is set forth above, includes an express warranty guaranteeing the equipment supplied for one year from the date of initial operation. This express warranty limits B & W’s liability, however, to repair or replacement of any defective parts within the warranty period. The Uniform Commercial Code permits such a limitation or remedy. Section 2-719(l)(a) provides in full: The agreement may provide for remedies in addition to or in substitution for those provided in this Article and may limit or alter the measure of damages recoverable under this Article, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of non-conforming goods or parts. B & W has therefore effectively limited its liability for breach of its express warranty to repair or replacement. The warranty clause of the contract also excludes all implied warranties. The Uniform Commercial Code permits the contractual exclusion of implied warranties, provided the disclaimer is in writing and conspicuous. In the case of an implied warranty of merchantability, the language attempting to exclude such a warranty must expressly refer to merchantability. Section 2-316(2) of the Code provides in full: Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in the case of a" }, { "docid": "23632364", "title": "", "text": "Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The parties agree that the issues presented on appeal are governed by Illinois law. The lease contract itself provided that it was to be governed by Illinois law. Mississippi, the forum state for this case, recognizes that parties may legitimately control the choice of substantive law in a contract dispute as long as the state law selected bears a reasonable relation to the transaction. United States v. Biloxi Municipal School District, 219 F.Supp. 691, 695 (SID. Miss.1963), aff’d sub nom. United States v. Madison County Board of Education, 326 F.2d 237 (5th Cir. 1963); Miss.Code Ann. § 75-1-105(1) (1972). See also Dunavent Enterprises, Inc. v. Ford, 294 So.2d 788, 791 (Miss.1974). Because of the sufficient contacts of this case with Illinois, the lease contract validly invokes Illinois law. III. Validity of Warranty Disclaimer A. Disclaimer Conspicuousness Illinois has adopted the Uniform Commercial Code and applies selected provisions of the U.C.C. to equipment leases. Walter E. Heller & Co. v. Convalescent Home of the First Church of Deliverance, 49 Ill. App.3d 213, 8 Ill.Dec. 823, 365 N.E.2d 1285, 1289 (1977). The warranty disclaimer provisions of Ill.Ann.Stat. ch. 26, § 2-316 apply to equipment leases when the Illinois U.C.C. implied warranties are found applicable. Walter E. Heller, 8 Ill.Dec. at 828, 365 N.E.2d at 1290. Assuming without deciding that the U.C.C. implied warranties of merchantability and fitness for a particular purpose apply to this ease, section 2-316(2) of the Illinois U.C.C. thus controls whether the warranty disclaimer in the lease agreement is valid. Section 2-316(2) provides that for a written disclaimer of the implied warranties to be valid, the disclaimer language must be “conspicuous.” Section 1-201(10) defines a conspicuous writing as one that a reasonable person against whom it is to operate ought to have noticed. It further provides that a printed heading in capitals is conspicuous, and that language in the body of a form is conspicuous if it is in larger or other contrasting type or color. The concept of conspicuousness is thus one of reasonable notice-whether the" }, { "docid": "2299019", "title": "", "text": "time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. (2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination. There has been considerable dispute over the applicability of § 2-302 to warranty disclaimers. Some commentators have argued that courts cannot find \"unconscionable” those disclaimers which otherwise comply with the technical prerequisites of UCC § 2-316, which requires that implied warranty disclaimers be conspicuous and specific. See, e.g., Leff, Uncon-scionability and the Code—The Emperor’s New Clause, 115 U.Pa.L.Rev. 485, 516-28 (1967). Others have made a strong case that warranty disclaimers which meet the § 2-316 standards still may be found unconscionable under § 2-302. See, e.g., J. White & R. Summers, Uniform Commercial Code § 12-11, at 533-38 (3d ed.1988). Most courts have impliedly adopted the latter view and suggested that warranty disclaimers are subject to the § 2-302 unconscionability rules. See, e.g., Martin, 767 F.2d at 299. Of course, the question need not be resolved in the present case, inasmuch as § 2308 of the Magnuson-Moss Act specifically invalidates implied warranty disclaimers which are \"unreasonable” or \"unconscionable.” As the parties apparently have recognized, however, UCC § 2-302 and the numerous cases decided thereunder nevertheless must guide our analysis of whether, as claimed, GM's \"durational limitations” on the operation of implied warranties were indeed unconscionable, since the federal statute expressly incorporates relevant principles of state law. See Part II, supra. .See also Luick v. Graybar Electric Co., 473 F.2d 1360, 1363 (8th Cir.1973) (plaintiff always “should be given a reasonable opportunity to present evidence\" on his claim of unconsciona-bility, after which \"it is then within the province of the trial court to determine the issue”) (emphasis supplied); Restatement (Second) of Contracts" }, { "docid": "5728729", "title": "", "text": "language of this disclaimer is consistent with the terms of the contract, this court must give effect to the disclaimer. Thus, Quantum has failed to state a claim for breach of express warranty because the contract does not contain the express warranties which Quantum alleges, and furthermore, the contract disclaims all express warranties. Accordingly, the court grants MAN Roland’s motion to dismiss Quantum’s third amended counterclaim. D. Fourth and fifth amended counterclaims — Breach of implied warranties In its fourth and fifth amended counterclaims, Quantum, respectively, alleges that MAN Roland breached an implied warranty of merchantability and breached an implied warranty of fitness. MAN Roland argues that both of these counterclaims fail to state a claim because the Uniform Commercial Code (“UCC”), which Illinois has adopted, expressly permits parties to a commercial transaction to contract to disclaim all implied warranties. Section 2-316(3)(a) of the UCC provides: [Ujnless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is,” “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty. 810 Ill.Comp.Stat. 5/2-316(3)(a). However, to specifically disclaim the implied warranty of merchantability, the language must conspicuously mention merchantability. Id. 5/2-316(2). “Language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color.” Id. 5/1-201(10). In their contract, Quantum and MAN Roland agree that all express, implied and statutory warranties are disclaimed. (Pl.Compl.Ex. 1 ¶ 11). This disclaimer specifically states: “ALL WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED AND STATUTORY, ARE HEREBY DISCLAIMED. ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. THE MACHINERY (INCLUDING ANY ACCESSORIES AND COMPONENTS) IS SOLD ‘AS IS.’ ” (Pl.Compl.Ex. 1 ¶ 11). This language clearly communicates that all warranties are excluded. Furthermore, the language specifically mentions merchantability and is written in a contrasting type set (large, bold letters). Thus, MAN Roland has sufficiently called Quantum’s attention to the exclusion of warranties, including the implied warranty of merchantability. Because the disclaimer provision in the" }, { "docid": "13052072", "title": "", "text": "388 Mass. 307, 316, 446 N.E.2d 674 (1983). The district court, however, had another reason for dismissing the claim. It concluded that chapter 93A liability was precluded because V.S.H. is a sophisticated buyer who had the opportunity to inspect the property and who agreed to purchase the property “as is”. The court noted that “this type of contractual arrangement is expressly permitted under the Uniform Commercial Code, M.G.L. c. 106, § 2-316, in non-consumer sales of goods”, and it thus “would be anomalous to hold that ‘as is’ contracts are permissible in sales of goods cases but not in commercial sales of land cases.” It concluded: “Absent allegations of the non-detectability of defects on inspection or their fraudulent concealment by a defendant, a plaintiff who has inspected the premises to be purchased and has agreed to purchase the land ‘as is’ cannot rely on § 3.16(2) to establish a defendant’s viola: tion of chapter 93A.” We believe the district court’s view of the law regarding “as is” clauses is incorrect. Although the Uniform Commercial Code does expressly permit disclaimers in the sale of goods between merchants, § 2-316 refers specifically to disclaimers of implied warranties, suggesting to us that it was intended only to permit a seller to limit or modify the contractual bases of liability which the Code would otherwise impose on the transaction. The section does not appear to preclude claims based on fraud or other deceptive conduct. Section 1-102(3) of Mass.Gen.Laws ch. 106 lends support to this interpretation of § 2-316. It states: “The effect of provisions of this chapter may be varied by agreement, except as otherwise provided in this chapter and except that the obligations of good faith, diligence, reasonableness and care prescribed by this chapter may not be disclaimed by agreement ...” (emphasis added). We find further support for our view implicit in Marcil v. John Deere Industrial Equipment Co., 9 Mass.App. 625, 403 N.E.2d 430, app. denied, 380 Mass. 940 (1980). The court in that case upheld a disclaimer of all express and implied warranties other than the warranty specified on the purchase" }, { "docid": "2677842", "title": "", "text": "of California, have filed a claim for violation of a New Jersey statute, and have contractually agreed to the application of New Jersey law. There is no conceivable scenario in which this Court could apply California law to the instant claim. C. PLAINTIFFS’ SECOND CAUSE OF ACTION FOR BREACH OF IMPLIED WARRANTIES OF MERCHANTABILITY Plaintiff Intrax claims that defendant Lucent breached implied warranties of merchantability and fitness for a particular purpose under New Jersey law. 1. Statute of Limitations Plaintiff Intrax also attempts to get around the one year limitation period to which it contractually agreed, by arguing that the limitations period should have been tolled due to defendants’ fraudulent concealment of the Y2K defects at the time of sale. While the UCC, as adopted by New Jersey law, allows the parties to adopt a shorter limitations period, it also allows for tolling of those shorter periods. See U.C.C. § 2-725(4); NJSA sec. 12A:2-725(4). Accordingly, the doctrine of fraudulent concealment may be applied to toll the statute of limitations on Intrax’s breach of implied warranty claim. See Zurn Constructors, Inc. v. B.F. Goodrich Co., 746 F.Supp. 1051, 1055 (D.Kan.1990); Simpson v. Widger, 311 N.J.Super. 379, 709 A.2d 1366, 1373 (1998). Plaintiffs have sufficiently alleged that defendants fraudulently concealed the Y2K defects in their products in order to satisfy their obligations at this stage of the proceedings. 2. Plaintiff Intrax Agreed to a Disclaimer of All Warranties On the merits of this cause of action, defendants contend that the implied warranty claim is barred by a disclaimer of those warranties contained in the purchase contract. The disclaimer is contained two-thirds of the way through a single page document titled “Terms and Conditions,” and is written in upper-case type — in the same font size as the rest of the document, and without boldfacing, italics, or other special typeface — as follows: AT & T AND ITS AFFILIATES AND SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. See Wiessler Deck, Exh. C, para. 13. The Uniform Commercial Code, as adopted" }, { "docid": "581371", "title": "", "text": "warranty that the whole of the goods shall conform to the sample. 810 ILCS 5/2-313. To enforce an express warranty under Illinois law, however, a party without a warranty assignment alleging purely economic loss must be in privity of contract. Collins Co. v. Carboline Co., 837 F.2d 299, 301 (7th Cir.1988) (certifying to the Illinois Supreme Court the question of whether a valid warranty assignment creates privity). “Privity requires that the party suing has some contractual relationship with the one sued.” Crest Container Corp. v. R.H. Bishop Co., 111 Ill.App.3d 1068, 1076, 67 Ill.Dec. 727, 445 N.E.2d 19, 25 (1982). Only a valid assignment of the express warranty creates privity of contract. Collins Co. v. Carboline Co., 864 F.2d 560, 561 (7th Cir.1989) (conforming to the Illinois Supreme Court’s affirmative answer to the certified question whether a warranty assignment creates privity). Here, Caterpillar was not in privity of contract with Usinor. Caterpillar issued purchase orders to CMSA for truck bodies; it was CMSA who bought the steel from Leeco, Usinor’s agent. (Compl. ¶ 20.) Caterpillar may have established the existence of an express warranty by alleging that Usinor made numerous promises regarding the performance of the Creusabro steel (id. ¶ 61); that the steel failed to conform to those promises (id. ¶ 62); and that the steel failed to measure up to the sample. (Id. ¶ 63.) Only CMSA was in privity with Usinor, however, and Plaintiffs have made no assertion that CMSA assigned warranty rights to Caterpillar. Thus, Caterpillar cannot enforce the express warranty and its claim of breach against Usinor cannot be sustained. B. Breach of Implied Warranty To state a claim for breach of implied warranty, a plaintiff must show that before the sale, the seller had reason to know the particular purpose for which the plaintiff bought the goods; that the plaintiff was relying on the seller’s skill or judgment to select goods suitable for that purpose; and that the goods were not suitable for that particular purpose. 810 ILCS 5/2-315; Rubin v. Marshall Field & Co., 232 Ill.App.3d 522, 526-27, 173 Ill.Dec. 714, 597 N.E.2d" }, { "docid": "15083168", "title": "", "text": "warranty action. 406 Mass. at 375, 378 n. 8, 548 N.E.2d 182. The Court in Canal Electric ruled that the disclaimer was enforceable even though the limited repair remedy allegedly failed of its essential purpose. Id. In this case, where plaintiff has not even raised the issue of failure of purpose of the limited remedy, it is clear that consequential damages are excluded and that defendants are entitled to summary judgment on plaintiff’s breach of contract claim as a matter of law and undisputed fact. 2. The Breach of Warranty Claim Plaintiff charges that the defendants, through their delivery of a defective boom-lift, breached both the implied warranty of merchantability and an express warranty created by their exhibition and demonstration of the Ontario Hydro lift. As suggested above, plaintiff’s recovery of consequential damages on a breach of warranty theory is precluded by the limitations clauses included in SAI’s acknowledgements, even if a breach occurred. Canal Electric, 406 Mass. at 375, 548 N.E.2d 182; M.G.L. c. 106 § 2-316(4). In addition, plaintiff’s claim founders on the facts of this case and on the disclaimer of warranties incorporated in paragraph 17 of SAI’s acknowledgements, which amply establish that no breach of an enforceable warranty took place. Exclusion of implied warranties is governed by M.G.L. c. 106, § 2-316, which states in relevant part: (2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous---- (3) Notwithstanding subsection (2) (a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is”, “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty____ Conspicuous disclaimers or limitations on warranties will only be ignored when unconscionable. Marcil v. John Deere Industrial Equipment Co., 9 Mass.App.Ct. 625, 629, 403 N.E.2d 430 (1980). This court" }, { "docid": "2677843", "title": "", "text": "claim. See Zurn Constructors, Inc. v. B.F. Goodrich Co., 746 F.Supp. 1051, 1055 (D.Kan.1990); Simpson v. Widger, 311 N.J.Super. 379, 709 A.2d 1366, 1373 (1998). Plaintiffs have sufficiently alleged that defendants fraudulently concealed the Y2K defects in their products in order to satisfy their obligations at this stage of the proceedings. 2. Plaintiff Intrax Agreed to a Disclaimer of All Warranties On the merits of this cause of action, defendants contend that the implied warranty claim is barred by a disclaimer of those warranties contained in the purchase contract. The disclaimer is contained two-thirds of the way through a single page document titled “Terms and Conditions,” and is written in upper-case type — in the same font size as the rest of the document, and without boldfacing, italics, or other special typeface — as follows: AT & T AND ITS AFFILIATES AND SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. See Wiessler Deck, Exh. C, para. 13. The Uniform Commercial Code, as adopted by New Jersey, specifically authorizes parties to waive these warranties, so long as the waiver is “in writing and conspicuous.” See N.J. Stat. Ann. § 12A:2-316(2). The Code states: A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals ... is conspicuous. Language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color. The Code further provides that “the court” shall determine whether a term or clause is “conspicuous.” See N.J. Stat. Ann. § 12A:1 — 201(10); see also Sierra Diesel Injection Service, Inc. v. Burroughs Corp., Inc., 890 F.2d 108, 114 (9th Cir.1989). In making this determination, the Court must review the conspicuousness of the disclaimer in the context of the entire contract, and in light of the sophistication of the parties. See Sierra Diesel, 890 F.2d at 115. There is no mechanistic test that will apply to all cases. Id. In Sierra Diesel," }, { "docid": "20398484", "title": "", "text": "Warranties Alternatively, GAF requests that the court alter the Circuit Court order granting partial summary judgment in favor of Plaintiffs on their claim for breach of implied warranties. The Circuit Court granted Plaintiffs’ Motion for Partial Summary Judgment on the basis that GAF’s attempt to exclude implied warranties was ineffective under Gold Kist v. The Citizens and Southern Nat. Bank, of South Carolina, 286 S.C. 272, 333 S.E.2d 67 (Ct.App.1985). Because the Circuit Court order relies on Gold Kist ■without discussion of its applicability to the circumstances of this case, the court grants GAF’s request for amendment of the Circuit Court order. Subject to certain limitations, South Carolina law generally permits a seller to disclaim the implied warranties of merchantability and fitness for a particular purpose. The South Carolina Code of Laws specifically provides: to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude the implied warranty of merchantability or of fitness for a particular purpose must be specific____ S.C.Code Ann. § 36-2-316 (2012). Furthermore, “a seller’s warranty whether express or implied extends to any natural person who may be expected to use, consume or be affected by the goods and whose person or property is damaged by breach of the warranty.” S.C.Code Ann. § 36-2-318 (2012). As noted in the Comments to section 318, third-party beneficiaries not only receive warranty protection, but are subject to valid warranty disclaimers. See id., Cmt. 1 (providing, in part: “[t]o the extent that the contract of sale contains provisions under which warranties are excluded or modified, or remedies for breach are limited, such provisions are equally operative against beneficiaries of warranties under this section”). Although South Carolina courts have not expounded upon this Code section, the United States Court of Appeals for the Fourth Circuit has had the opportunity to analyze a similar provision from another jurisdiction. Relying on the Uniform Commercial Code" }, { "docid": "7331011", "title": "", "text": "a more significant relationship with the transaction. In particular, the place of delivery rule is inapplicable where ‘the contract contemplates a continued relationship between the parties which will be centered in a state other than that where delivery took place’, Restatement comment / to § 191. This is clearly the case with an agreement of this nature, see Collins Radio Co. of Dallas v. Bell, 623 P.2d 1039 (Okl.App.1980). Colorado law again governs these claims. Colorado law accordingly governs both the contract and tort issues. II THE VALIDITY OF THE DISCLAIMERS The validity of disclaimer clauses in Colorado is governed by Colo.Rev.Stat. § 4-2-316(2). This demands that to exclude the implied warranty of merchantability, the language of the warranty must actually mention merchantability, must be in writing, and must be conspicuous. To exclude an implied warranty of fitness, the language must again be conspicuous but the warranty excluded need not be specifically mentioned. The provision states a disclaimer clause to the effect ‘There are no warranties which extend beyond the description on the face hereof’ will suffice to exclude the warranty of fitness of purpose. ‘Conspicuous’ is defined by § 4-1-201(10) in terms of a clause written so that a reasonable person against whom it is to operate ought to have noticed it. § 4-1-201(10) is qualified by § 4-2-316(3). Sub-paragraph (a) of this provision reads as follows; Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is’, ‘with all faults’, or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain there is no implied warranty. There are two clauses in issue. The first appears in the actual dealership agreement and reads; There are no warranties, express or implied, made by Seller on the products sold by it to Dealer, or anyone else, except as follows ... Dealership Agreement ¶ 8. I find this clause to be conspicuous for the purposes of the provision. Plaintiffs seek to argue the clause was not conspicuous within the meaning of the provision on the basis the print was not" }, { "docid": "21990149", "title": "", "text": "suffered injury. Polaris Indus., Inc. v. McDonald, 119 S.W.3d 331, 336 (Tex.App.-Tyler 2003, no pet.). And an implied warranty of fitness for a particular purpose arises under Texas law when the seller “has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods.” Two Rivers Co. v. Curtiss Breeding Serv., 624 F.2d 1242, 1252 (5th Cir.1980). Regardless of whether Interactive has offered sufficient evidence to support its implied warranty claims (which it has not), those claims fail for the simple reason that implied warranties were effectively disclaimed by the license agreements. The Voyager license agreements to versions 1.0.1, 2.0, and 2.01 each included the following disclaimer: OBJECTSPACE, INC. DISCLAIMS AND MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY OF VOYAGER(tm), EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, ■ FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. OBJECTSPACE, INC. SHALL NOT BE LIABLE FOR ANY DIRECT OR CONSEQUENTIAL DAMAGES SUFFERED BY LICENSEE AS A RESULT OF USING, MODIFYING, OR DISTRIBUTING VOYAGE R(tm) OR ITS DERIVATIVES. (Pl.App.83, 85, 87). Texas law permits sellers to disclaim the implied warranties of merchantability and fitness for a particular purpose. See Tex. Bus. & Comm. Code § 2.316(b). For a disclaimer of implied warranties to be effective, it must be conspicuous. Id. According to the Texas Business and Commercial Code, a disclaimer is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: Non-Negotiable Bill of Lading) is conspicuous. Language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color. Tex. Bus & Comm. Code § 1.201(10). The Court finds that a reasonable person ought to have noticed the disclaimers contained in the Voyager license agreements, which were typed in all capital letters. See Arkwright-Boston Mfrs. Mut. Ins. Co. v. Westinghouse Elec. Corp., 844 F.2d 1174, 1183-84 (5th Cir.1988) (finding that contract properly disclaimed" }, { "docid": "13452437", "title": "", "text": "of Sale expressly disclaim all warranties, express or implied, as to the yearling's fitness for a particular purpose. More specifically, North Ridge points out that if the First Condition of Sale was insufficient to put plaintiff on notice that this yearling was being sold “as-is,” the Fifth Condition disclaims any “guarantee of any kind express or implied as to the soundness, condition, wind or other quality of any animal sold in this sale ...” Due to the express disclaimer of any warranty and the fact that the Conditions of Sale put plaintiff on notice that (1) this yearling was sold with no warranty, express or implied, and (2) there was no guarantee as to the “soundness, condition, wind or other quality” of the yearling, and (3) the yearling was being sold “as-is,” plaintiff’s claim for rescission must fail. North Ridge also points out that the Conditions of Sale are a contract between the parties herein. Keck v. Wacker, 413 F.Supp. 1377, 1381 (E.D.Ky.1976). These Conditions of Sale plainly state that there were no warranties surrounding this yearling; it was sold “as-is.” A sales contract that properly excludes all warranties is enforceable. Greg Coats Cars, Inc. v. Kasey, 576 S.W.2d 251, 252 (Ky.App.178). Therefore, North Ridge submits that as a matter of law, any and all warranties, including guarantees of merchantability and fitness for a particular purpose, as well as to soundness and wind, were effectively disclaimed by the conspicuous language in the Conditions of Sale. See Childers & Venters, Inc. v. Sowards, 460 S.W.2d 343 (Ky.1970), and Cline v. Allis-Chalmers Corp., 690 S.W.2d 764, 768 (Ky.App.1985). In conjunction with the Conditions of Sale, Keeneland reminds the court that the Uniform Commercial Code also controls this sales transaction. Keeneland submits that especially critical to a correct analysis of this action is an understanding of the import of K.R.S. 355.1-103, which provides: Unless displaced by the particular provisions of this chapter, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating" }, { "docid": "23077377", "title": "", "text": "the “words were staples of commercial law”). Accordingly, courts that have addressed the term in the FCRA often have turned to cases involving the Uniform Commercial Code (“UCC”) and TILA for guidance. See Stevenson v. TRW Inc., 987 F.2d 288, 295 (5th Cir.1993) (defining “clear and conspicuous” language used in 15 U.S.C. § 1681i(d) with reference to TILA and UCC cases); Tucker v. New Rogers Pontiac, Inc., 2003 WL 22078297, at *4 (N.D.Ill. Sept.9, 2003) (addressing the phrase in 15 U.S.C. § 1681m(d)(l) by relying on a TILA decision); Sampson, 2003 WL 21785612, at *3-4 (relying on cases from the Fair Debt Collection Practices Act, TILA and other sections of the FCRA to interpret the term in § 1681m). For example, in Stevenson, 987 F.2d 288, the only federal court of appeals case to consider the meaning of “clear and conspicuous” in the context of the FCRA, the Fifth Circuit looked to how the term had been interpreted for purposes of the UCC. That court stated: The term “conspicuous” has been construed most frequently with the Uniform Commercial Code § 2-316(2), which requires that any exclusion or modification of the implied warranty of merchantability be conspicuous, and that any exclusion or modification of the implied warranty of fitness for a particular purpose be made in a conspicuous writing. A contract’s warranty disclaimer satisfies the conspicuous requirement when it is printed in all capital letters, when it appears in a larger type than the terms around it, or when it is in a larger and boldface type. Likewise, a disclaimer in boldface type, printed in all capitals on the face of the warranty above the buyer’s signature meets the definition of conspicuousness. A disclaimer is not conspicuous, however, when it is printed in small print on the back of the document, when it is the same size and typeface as the terms around it, or when it is not in boldface or capital lettering. Stevenson, 987 F.2d at 296 (internal citations omitted). After reviewing these standards, the court evaluated the notice at issue to determine whether it was conspicuous: TRW’s notice" }, { "docid": "4109359", "title": "", "text": "warranty disclaimers do not apply to strict liability claims, the Court denies defendant’s motion for summary judgment with respect to plaintiffs strict liability claim for damages related to the remainder of the roofing systems and to the PPT building structure. . Plaintiff's complaint also names Ron-Ike as a defendant in this case, including claims for damages based on six counts: negligence, breach of contract, breach of an implied warranty of merchantability, breach of an implied warranty of fitness for a particular purpose, strict liability, and fraud. The Court declared Ron-Ike in default after it failed to file an answer to plaintiff's complaint. Default, filed Sept. 22, 1993. . Defendant issued two separate warranties, one for the 510 coating applied to Roof 1 and another for the 5013 coating applied to Roof 2. The two warranties contain identical language in the clause excluding the implied warranty of merchantability. . Defendant correctly argues that the clause also is sufficiently conspicuous to exclude a claim based on an implied warranty of fitness for a particular purpose. See D.C.Code Ann. § 28:2-316(2). However, plaintiff's complaint names only Ron-Ike, not QSC, in its claim for breach of an implied warranty of fitness for a particular purpose. . Significantly, §§ 2-316, 9-109, and 7-209 all were approved simultaneously when the District of Columbia adopted the Uniform Commercial Code in 1965. . In addition, other authorities have rejected the inclusion of roofing materials within the definition of consumer goods when considered in a warranty context. Cf. Rules, Regulations, Statements and Interpretations under the MagnusonMoss Warranty Act, 16 C.F.R. § 700.1(e) (1993) (when roofing materials \"are at the time of sale integrated into the structure of a dwelling they are not consumer products as they cannot be practically distinguished from realty”). . Defendant's testing was limited to application of the coating to aluminum panels, not polyurethane foam. See Dep. of James Bolotin at 30. . Defendant's field representative made approximately six cuttings of the 510 coating after it was applied in order to test its thickness. See Dep. of George Stauffer at 50-51. Defendant's company policy, however, is" }, { "docid": "20398485", "title": "", "text": "be by a writing and conspicuous. Language to exclude the implied warranty of merchantability or of fitness for a particular purpose must be specific____ S.C.Code Ann. § 36-2-316 (2012). Furthermore, “a seller’s warranty whether express or implied extends to any natural person who may be expected to use, consume or be affected by the goods and whose person or property is damaged by breach of the warranty.” S.C.Code Ann. § 36-2-318 (2012). As noted in the Comments to section 318, third-party beneficiaries not only receive warranty protection, but are subject to valid warranty disclaimers. See id., Cmt. 1 (providing, in part: “[t]o the extent that the contract of sale contains provisions under which warranties are excluded or modified, or remedies for breach are limited, such provisions are equally operative against beneficiaries of warranties under this section”). Although South Carolina courts have not expounded upon this Code section, the United States Court of Appeals for the Fourth Circuit has had the opportunity to analyze a similar provision from another jurisdiction. Relying on the Uniform Commercial Code Official Comment, which is substantially the same as the Comment to S.C.Code Ann. § 36-2-318, the Court noted that Virginia’s statutory provision extending warranty protection to certain third-parties was intended “to confer on foreseeable users of a product both the benefits and limitations of warranties provided to the purchaser.” See Buettner v. R.W. Martin & Sons, Inc., 47 F.3d 116, 119 (4th Cir.1995). The Court further cited with approval Goodbar v. Whitehead Bros., 591 F.Supp. 552, 567 (W.D.Va.1984) aff'd sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir.1985), in which the district court found that, because a third- party user of silica products could have no more warranty protection than the purchaser, the proper inquiry for determining the rights of the third-party user was “whether an implied warranty ... was created when the Defendant suppliers sold the silica sand and related products to the [purchaser].” Id. Accordingly, to the extent that a plaintiff seeks the protections of an express warranty as a third-party beneficiary, the plaintiff is also bound by the warranty limitations and" }, { "docid": "3367239", "title": "", "text": "such a limitation or remedy. Section 2-719(l)(a) provides in full: The agreement may provide for remedies in addition to or in substitution for those provided in this Article and may limit or alter the measure of damages recoverable under this Article, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of non-conforming goods or parts. B & W has therefore effectively limited its liability for breach of its express warranty to repair or replacement. The warranty clause of the contract also excludes all implied warranties. The Uniform Commercial Code permits the contractual exclusion of implied warranties, provided the disclaimer is in writing and conspicuous. In the case of an implied warranty of merchantability, the language attempting to exclude such a warranty must expressly refer to merchantability. Section 2-316(2) of the Code provides in full: Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in the case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.” The disclaimer of implied warranties in the warranty clause of the contract fulfills all these statutory criteria. B & W has therefore effectively disclaimed all implied warranties. (2) The Consequential Damages Clause The Code allows the parties to a contract to limit or exclude consequential damages. Section 2-719(3) provides in full: Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not. See also Section 2-316(4). Dravo has admitted that B & W’s consequential damages clause is not unconscionable. See Section 2-719(3), Official Comment. The consequential damages clause in the" }, { "docid": "23632365", "title": "", "text": "First Church of Deliverance, 49 Ill. App.3d 213, 8 Ill.Dec. 823, 365 N.E.2d 1285, 1289 (1977). The warranty disclaimer provisions of Ill.Ann.Stat. ch. 26, § 2-316 apply to equipment leases when the Illinois U.C.C. implied warranties are found applicable. Walter E. Heller, 8 Ill.Dec. at 828, 365 N.E.2d at 1290. Assuming without deciding that the U.C.C. implied warranties of merchantability and fitness for a particular purpose apply to this ease, section 2-316(2) of the Illinois U.C.C. thus controls whether the warranty disclaimer in the lease agreement is valid. Section 2-316(2) provides that for a written disclaimer of the implied warranties to be valid, the disclaimer language must be “conspicuous.” Section 1-201(10) defines a conspicuous writing as one that a reasonable person against whom it is to operate ought to have noticed. It further provides that a printed heading in capitals is conspicuous, and that language in the body of a form is conspicuous if it is in larger or other contrasting type or color. The concept of conspicuousness is thus one of reasonable notice-whether the writing would have invited the attention of a reasonable person. Alan Wood Steel Co. v. Capital Equipment Enterprises, Inc., 39 Ill.App.3d 48, 349 N.E.2d 627 (App.Ct.1976); U.C.C. § 1-201, Official Comment 10. Disclaimers of implied warranties are not favored by Illinois courts and are strictly construed against sellers. Overland Bond & Investment Corp. v. Howard, 9 Ill.App.3d 348, 292 N.E.2d 168 (1972). Therefore a writing is not conspicuous if it is only in slight contrast with the rest of the instrument. Since the concept of conspicuousness is one of reasonableness and notice, the circumstances play a crucial role in whether language is conspicuous. Where the disclaimer is in a commercial transaction involving experienced businesspersons rather than a consumer transaction involving ordinary purchasers, the concept of reasonableness under the circumstances depends on what a reasonable businessperson is expected to notice. Section 4 of the lease agreement is the warranty disclaimer. That clause has a boldface heading “Warranties,” and that boldface heading is larger than the boldface heading of the earlier and some of the later lease" } ]

[ { "docid": "12905741", "title": "", "text": "courts. The effort is improper, but it is improper by virtue of the doctrine of res judicata, a defense that is waivable and was waived here. So we need not get into the question whether Carpenter Cook’s lawyers, who were not parties to the state court proceeding, could nevertheless use a final judgment in that proceeding to defend against Del’s federal suit against them. See Restatement (Second) of Judgments § 29 (1982). We come at last to the merits. Section 9-503 of the Uniform Commercial Code, Wis.Stat. § 409.503, entitles a secured creditor faced with a default to take possession of the collateral either “without judicial process if this can be done without breach of the peace” or “by action,” the latter a term that as the district court explained has been construed to include actions under chapter 810 of the Wisconsin statutes, the state’s replevin statute. 603 F.Supp. at 1075. Chapter 810 authorizes the state court to issue an order for return of property before final judgment in a replevin suit, if the plaintiff submits an affidavit specifying the nature and location of the property and the nature and grounds of his claim to it. Wis.Stat. § 810.02. The procedure is ex parte, which means that a debtor can find himself, as Del’s did, dispossessed of his property without notice or an opportunity for a hearing in advance of the dispossession. However, the debtor may move the judge at any time to modify or set aside the order “for any sufficient cause.” Wis.Stat. § 810.05. We must consider the constitutional sufficiency of the procedure created by the interaction of these various statutory provisions. As we explained in Sutton v. City of Milwaukee, 672 F.2d 644 (7th Cir.1982), the question whether due process of law requires that the state give a property owner notice and an opportunity for a hearing before rather than after it takes his property depends on the incremental costs and benefits of such a “predeprivation” hearing. The incremental costs are the costs of delay that the predeprivation hearing would impose. Here they would be formidable. When" } ]

[ { "docid": "15684795", "title": "", "text": "is cumbersome and annoying to have to seek execution in a sister state. On the other hand, consider the damage to the debtor. Notwithstanding the existence of what may be a meritorious defense, he is subject to having his property tied up instantly and for years. He is remediless unless he posts a bond, in connection with which he may not only be required to advance a substantial premium, but also to post security and impair his credit. The leverage is instant. He is entitled to a reduction of the garnished sum or of security only if he can show that the possible judgment is less than the amount attached. All the plaintiff need show is a colorable claim. He is not even required to post a bond to protect the defendant. In view of the enormous detrimental impact which such prenotice and hearing seizure, not even curable by notice and hearing, may have on the business of a debtor, it could be concluded that the interest of the debtor in being free from this type of seizure outweighs the state or creditor interest in protecting the plaintiff, or at least that the rules are not sufficiently narrowly drawn to protect the valid creditor interest alone. The broad sweep of the rules encompasses within its grasp virtually every type of claim, every type of property, and every type of defendant without procedural safeguard. Cf. Laprease v. Raymours, supra, where the court stated, at p. 723: “The statute, giving the right to repossess without a hearing, is not ‘narrowly drawn’ to meet special situations and circumstances but covers any replevin situation.” One situation to which the applicability of the rules could not be assailed is that contemplated by the Pennsylvania Fraudulent Debtors Attachment, Pa.R. Civ.P.T286, which provides for pre-judgment attachment when it is alleged that defendant, with intent to defraud the plaintiff: “(1) has removed or is about to remove property from the jurisdiction of the court; (2) has concealed or is about' to conceal property; (3) has transferred or is about to transfer property; or (4) has concealed himself within," }, { "docid": "1131754", "title": "", "text": "The Court therefore found that such prejudgment remedies as attachment “are subject to the strictures of due process.” Doehr, Id. (quoting Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 85, 108 S.Ct. 896, 899, 99 L.Ed.2d 75 (1988)). Like the attachment statute in Doehr, the provisional remedies authorized under Rule 56 amount to the deprivation of a “significant property interest.” Title is clouded. Defendants are prohibited from alienating, assigning, transferring or otherwise encumbering the properties which are the subject of the order. In sum, we find that Rule 56 authorizes the taking of a “significant property interest” within the meaning of the Due Process clause. We, therefore, turn to the second part of the analysis to determine what process is due. In Doehr, the Court, relying on the analysis developed in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), set forth the proper threefold inquiry to be used to determine whether a state prejudgment remedy statute comports with the mandates of due process. For this type of ease, therefore, the relevant inquiry requires, as in Mathews, first, consideration of the private interest that will be affected by the prejudgment measure; second, an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards; and third, in contrast to Mathews, principal attention to the interest of the party seeking the prejudgment remedy, with, nonetheless, due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections. Doehr, — U.S. at -, 111 S.Ct. at 2112. We now apply this three-part test to both the bankruptcy court’s September 4, 1991 ex parte attachment order and the September 26, 1991 orders entered after the hearing. (1) The Affected Private Interest The September 4, 1991 order attached the proceeds of the sale of the condominium. Had the great majority of the funds not been previously transferred outside the United States prior to the commencement of the adversary proceeding, the court’s order would have deprived Lili-ane Unanue and/or" }, { "docid": "23421120", "title": "", "text": "York provisions do not grant the debtor-defendant an immediate post-seizure hearing at which the creditor-plaintiff must prove the grounds “upon which the writ issued.” (416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406.) We find that the opportunity for such a hearing was critical to the holding in Mitchell, and that its absence renders New York’s statute fatally defective. IV. It is true that under the New York law a defendant has the right to move to vacate the attachment. Section 6223 of the statute provides in pertinent part: “Prior to the application of property or debt to the satisfaction of a judgment, the defendant may move, on notice to each party and the sheriff, for an order vacating the order of attachment. If, after the defendant has appeared in the action, the court determines that the attachment is unnecessary to the security of the plaintiff, it shall vacate the order of attachment.” (emphasis added) There are several reasons why § 6223— the sole mechanism available to a defendant who seeks to vacate the attachment — does not meet the standards of the Mitchell-Louisiana statute which provided in straightforward language (Article 3506, Louisiana Code of Civil Procedure): “The defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued.” (emphasis added) By its terms, that is, the Louisiana law required that the attachment be vacated unless the grounds upon which it was issued are proven, and imposed the burden of such proof on the creditor. The New York Statute affords neither protection. The sole basis for vacating the attachment under the CPLR is not that the grounds upon which it has been issued are unproven, but rather that the attachment “is unnecessary to the security of the plaintiff”; and the burden of proof is not, as in Mitchell, on the plaintiff, but on the defendant. That this is not too narrow or literal a reading of the language of 6223 is resoundingly confirmed by numerous holdings of the New York courts. Without exception" }, { "docid": "22402906", "title": "", "text": "337 (1969), and its progeny, therefore, is not that post-attachment hearings are generally acceptable provided that plaintiff files a factual affidavit and that a judicial officer supervises the process, but that a prior hearing may be postponed where exceptional circumstances justify such a delay, and where sufficient additional safeguards are present.” Id., at 855. This conclusion was deemed to be consistent with our decision in Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974), because the absence of a preattachment hearing was approved in that case based on the presence of extraordinary circumstances. A further reason to invalidate the statute, the court ruled, was the highly factual nature of the issues in this case. In Mitchell, there were “uncomplicated matters that len[t] themselves to documentary proof” and “[t]he nature of the issues at stake minimized] the risk that the writ [would] be wrongfully issued by a judge.” Id., at 609-610. Similarly, in Mathews v. Eldridge, 424 U. S. 319, 343-344 (1976), where an evidentiary hearing was not required prior to the termination of disability benefits, the determination of disability was “sharply focused and easily documented.” Judge Pratt observed that in contrast the present case involved the fact-specific event of a fist fight and the issue of assault. He doubted that the judge could reliably determine probable cause when presented with only the plaintiff’s version of the altercation. “Because the risk of a wrongful attachment is considerable under these circumstances, we conclude that dispensing with notice and opportunity for a hearing until after the attachment, without a showing of extraordinary circumstances, violates the requirements of due process.” 898 F. 2d, at 856. Judge Pratt went on to conclude that in his view, the statute was also constitutionally infirm for its fail ure to require the plaintiff to post a bond for the protection of the defendant in the event the attachment was ultimately found to have been improvident. Judge Mahoney was also of the opinion that the statutory provision for attaching real property in civil actions, without a prior hearing and in the absence of extraordinary circumstances, was unconstitutional." }, { "docid": "16687960", "title": "", "text": "affidavit seeking the writs. As the majority indicates, the attachments here were obtained under Alabama’s mechanic’s lien statute. Alabama Code § 85-11-110 creates a lien in favor of a repairman against any vehicle he repairs, and Alabama Code § 35-11-111 outlines the procedures for enforcing that lien by attachment. Although Section 35-11-111 requires both the filing of an affidavit setting forth the plaintiff’s entitlement to relief and the posting of a bond payable to the defendant in case of a wrongful attachment, that section does not specify who is authorized to issue the writ. Instead, it provides only that the writ is to be issued “by any officer authorized to issue such writs.” Id. Therefore, in order to determine who can issue such a writ and what discretion the issuing officer possesses, resort must be had to the provisions of Alabama’s general attachment statute. Those provisions authorize a circuit court judge to issue a writ of attachment. Ala. Code § 6-6-43. However, nothing in those provisions authorizes a circuit court judge to go behind a creditor’s allegations in order to determine their validity. In actions involving either the seizure of property under the detinue statute or the enforcement of a security interest, Ala.R.Civ.P. 64(b) mandates a judicial inquiry into the facts supporting the need for an attachment without prior notice. However, both Rule 64 and its Committee Comments indicate that the special procedures established therein apply only to actions in detinue or in enforcement of a security interest and that those procedures are in addition to the procedures required under the general attachment statute. Consequently, in issuing a writ of attachment under Section 35-11-111, the circuit court judge’s function is solely to determine the adequacy of the plaintiff’s allegations. If the facts as alleged would entitle the plaintiff to relief, the judge must issue the writ. He cannot determine whether the allegations are in fact true. Such limited “discretion” fails to provide the meaningful judicial participation contemplated in Mitchell. The safeguards outlined in Mitchell are a substitute for prior notice and hearing because, like pre-seizure notice, they protect debtors against" }, { "docid": "16687961", "title": "", "text": "creditor’s allegations in order to determine their validity. In actions involving either the seizure of property under the detinue statute or the enforcement of a security interest, Ala.R.Civ.P. 64(b) mandates a judicial inquiry into the facts supporting the need for an attachment without prior notice. However, both Rule 64 and its Committee Comments indicate that the special procedures established therein apply only to actions in detinue or in enforcement of a security interest and that those procedures are in addition to the procedures required under the general attachment statute. Consequently, in issuing a writ of attachment under Section 35-11-111, the circuit court judge’s function is solely to determine the adequacy of the plaintiff’s allegations. If the facts as alleged would entitle the plaintiff to relief, the judge must issue the writ. He cannot determine whether the allegations are in fact true. Such limited “discretion” fails to provide the meaningful judicial participation contemplated in Mitchell. The safeguards outlined in Mitchell are a substitute for prior notice and hearing because, like pre-seizure notice, they protect debtors against “abuse by creditors without valid claims.” 416 U.S. at 614, 94 S.Ct. at 1903. Therefore, judicial participation in issuing a writ of attachment does not provide a substitute for preseizure notice unless that participation helps “minimize the risk that the ex parte procedure will lead to a wrongful taking.” Id. at 617, 94 S.Ct. at 1905. Judicial participation does not meaningfully reduce the risk of a wrongful attachment unless the judge can, if necessary, inquire into the truthfulness of the creditor’s allegations. Otherwise, the judge’s involvement would amount to nothing more than the very type of ministerial determination that the Supreme Court has struck down as insufficient to provide due process when performed by a clerk. See North Georgia Finishing, Inc. v. Di-Chem, 419 U.S. 601, 606-07, 95 S.Ct. 719, 722-23, 42 L.Ed.2d 751 (1975). This is not to say, however, that a judge must put every creditor to his proof or that a creditor, prior to issuance of a writ of attachment, must prove his claim by a preponderance of the evidence. Rather, the" }, { "docid": "10998442", "title": "", "text": "she should even be entitled to greater protection than a prejudgment debtor, since she owes nothing to the State. Hence, a proper procedural due process analysis requires analyzing the rights of Patrick Jahn separately from Melba Jahn. First, as to Patrick Jahn’s procedural rights. As mentioned, generally a post-judgment creditor is not entitled to notice and an opportunity to be heard before the seizure or attachment of his property by a judgment creditor. The circumstances of this case do not dictate a departure from that rule. In order to obtain a debtor’s tax refund the friend of the court was required to certify the amount and accuracy of arrearage. The only question is the amount of the arrearage support. Because of the simplicity of the question and the low likelihood of error — e.g. this is not a situation where the friend of the court is determining issues of credibility which may require an evidentiary hearing — a preseizure hearing is not necessary. See e.g., Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Transco Security, Inc. v. Freeman, 639 F.2d 318, 322 (6th Cir.), cert. denied, 454 U.S. 820, 102 S.Ct. 101, 70 L.Ed.2d 90 (1981), Likewise, notice before the IRS determines that the debtor is entitled to a tax refund would be superfluous. This is particularly true considering the postseizure procedures available to the debtor. Patrick Jahn received notice of the withholding immediately after the IRS determined he was entitled to a refund. See Plaintiffs’ Complaint, ¶ 10. This notice informed him of the purpose of the withholding and that if he questioned the propriety of the sums involved or the extent of his obligation he should contact the Office of Child Support. If Patrick Jahn had contacted the Office of Child Support he would have been notified by the friend of the court responsible for monitoring his debt and how to get in touch with that official. The established procedures further provided that if an error had been discovered, the friend of the court would document the mistake to the State and the" }, { "docid": "23203403", "title": "", "text": "which state officials charged with implementing a statute fail to provide constitutionally required predeprivation process when to do so would not be impossible or impracticable. The key is whether it is reasonably possible to hold a hearing. The balancing test announced in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), is not, as the majority supposes, concerned with whether the property deprivation occurred pursuant to a “formal\" or “informal” state policy, but rather whether predeprivation process was feasible. Indeed, the Supreme Court has explicitly rejected the proposition that Par-ratt may apply when predeprivation process is feasible, as long as the state provides adequate post deprivation process. Zinermon, 110 S.Ct. at 987 (“In situations where the State feasibly can provide a pre-deprivation hearing before taking the property, it generally must do so, regardless of the adequacy of a post-deprivation tort remedy to compensate for the taking.”); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). The Court emphasized in Zinermon that “Parratt and Hudson represent a special case of the Mathews v. Eldridge analysis, in which postdeprivation tort remedies are all the process that is due, simply because they are the only remedies the State could be expected to provide.” Zinermon, 110 S.Ct. at 985 (emphasis added). Thus, Zinermon simply reaffirms the functional test supplied by Mathews v. Eldridge. If the deprivation was predictable and predeprivation process was possible, the state should be held liable for failure to provide predeprivation process. It is eminently predictable (and not, unfortunately, unusual) that an official such as Felder who acts for the state in determining whether or not a license will be renewed and whether or not notice and a hearing will precede the renewal decision may abuse his authority and simply deny the renewal without furnishing the licensee due process. Under Mathews and Zinermon, a designated process-giver who refuses to give process violates the Constitution as much as a legislature that establishes inadequate procedural protections for property or liberty deprivations. I remain unpersuaded by the majority’s cursory review of" }, { "docid": "13280985", "title": "", "text": "control the outcome. The Linds argue that the Minnesota statute does not contain any procedural safeguards that would justify delaying Tracy’s opportunity to be heard until after the attachment of her funds. However, the postjudgment nature of the garnishment in this case distinguishes it from the Supreme Court’s consideration of safeguards in prejudgment attachment cases. The attachment in this case occurred after the defendants had already secured a judgment on Steve Lind’s debt. Courts have noted that, when balancing the due process interests of a creditor and a debt- or, the creditor’s interest should be accorded more weight in a postjudgment context than it should be accorded in a prejudgment attachment. See Reigh v. Schleigh, 784 F.2d 1191, 1198 (4th Cir.1986) (noting that “it is important to emphasize” the difference between prejudgment and post-judgment attachment, and that in the case of prejudgment attachment, “a party would be expected to enjoy greater rights than one who has already been adjudged judicially liable”); Brown v. Liberty Loan Corp. of Duval, 539 F.2d 1355, 1366 (5th Cir.1976) (“Unlike the prejudgment creditor, the creditor here has a judicially-awarded judgment that evidences the defendant’s debt----This factor sharply distinguishes prejudgment from post-judgment garnishment cases. As a result, the Sniadach holding that notice and an opportunity for a hearing must precede a prejudgment garnishment of wages does not directly. apply here.”). Indeed, the Supreme Court acknowledged in Fuentes that its conclusion that a debtor could not be deprived of property without prior notice and hearing absent “extraordinary situations,” 407 U.S. at 90, 92 S.Ct. 1983, applied only narrowly to the context of prejudgment deprivations, id. at 96, 92 S.Ct. 1983 (“We do not question the power of a State to' seize goods before a final judgment in order to protect the security interests of creditors so long as those creditors have tested their claim to the goods through the process of a fair prior hearing.”). In both the prejudgment and post-judgment contexts, postponing notice and hearing until attachment has occurred generally serves a creditor’s interest in preventing the waste or concealment of a debtor’s assets. See Mitchell," }, { "docid": "22861286", "title": "", "text": "income from a future paycheck, welfare benefit, or other source may not be available for two weeks or more, and that income may be insufficient to meet the person’s immediate needs. When we consider the additional fact that the money in the accounts may, as here, be covered by exemptions designed to protect a debtor’s means of purchasing basic necessities, the debtor’s interest in access to a bank account becomes very compelling. In determining whether the debtor’s protection under the Pennsylvania rules represents a proper accommodation of these interests, we must consider “the probable value, if any, of additional or substitute procedural safeguards” and the “fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). B. Review of the Pennsylvania Procedures The Pennsylvania postjudgment garnishment procedures do not provide for notice and an opportunity to be heard before attachment of bank accounts. Mrs. Finberg concedes that due process does not require these procedures, since their absence serves the creditor’s interest in preventing a waste or concealment of assets. See Mitchell v. W. T. Grant Co., 416 U.S. 600, 608-09, 94 S.Ct. 1895, 1900, 40 L.Ed.2d 406 (1974). She contends, however, that the procedures are inadequate because they do not contain certain measures for the protection of property subject to her exemptions: an opportunity for a hearing and adjudication of claims of exemption promptly after the attachment, adequate postseizure notice to the judgment debtor, a creditor’s affidavit stating that the writ of execution will not cause the attachment of exempt property, issuance of a writ only by a judicial officer, and a bond posted by the creditor for use in compensating the debtor for an attachment of exempt property. (1) Prompt postseizure hearing A fundamental requirement of due process is an opportunity to be heard “at a meaningful time.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). When the opportunity is deferred until after a provisional seizure of property, it must not be unnecessarily deferred much" }, { "docid": "3918805", "title": "", "text": "— U.S. -, 117 S.Ct. 513, 136 L.Ed.2d 403 (1996). iy. DISCUSSION In Connecticut v. Doehr, 501 U.S. 1, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991), the Su preme Court held that a Connecticut statute that “authorizes prejudgment attachment of real estate without prior notice or hearing, without a showing of extraordinary circumstances, and without a requirement that the person seeking the attachment post a' bond” violated the due process clause of the Fourteenth Amendment. Id. at 4, 111 S.Ct. 2105. In Doehr, John DiGiovanni sought an attachment of Doehr’s home in conjunction with a civil suit he was filing against Doehr for an alleged assault and battery. The Court applied the three-part inquiry of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), in order to determine whether Connecticut’s attachment statute satisfied due process. See Doehr, 501 U.S. at 10-11, 111 S.Ct. 2105. First, the court must consider the private interest that will be affected by the prejudgment action. Second, the court examines the risk of erroneous deprivation and the probable value of additional safeguards. Third, in the case of a dispute between private parties rather than between an individual and the government, the court must consider the interest of the party seeking the prejudgment remedy, with “due regard for any ancillary interest the government may have in providing the procedure ór forgoing the added burden of providing greater protections.” Id. at 11, 111 S.Ct. 2105. Applying the Mathews factors, the Court determined that Connecticut’s procedures inadequately protected Doehr’s due process rights. First, the Court stated that attachment affects significant property interests, despite the State’s argument that attachment did not involve a complete, physical, or permanent deprivation of real property. Id. at 11-12, 111 S.Ct. 2105. The Court then discussed the inadequacy of the standard of “probable cause,” whose meaning was unclear even to the State, to guard against the risk of erroneous deprivation. Id. at 13-14, 111 S.Ct. 2105. If probable cause only required the plaintiff to state a facially valid complaint, the risk of erroneous deprivation was substantial, as it would allow “deprivation" }, { "docid": "22402920", "title": "", "text": "Absent such allegations, however, the plaintiff’s interest in attaching the property does not justify the burdening of Doehr’s ownership rights without a hearing to determine the likelihood of recovery. No interest the government may The State’s substantive interest in protecting any rights of the plaintiff cannot be any more weighty than those rights themselves. Here the plaintiff’s interest is de minimis. Moreover, the State cannot seriously plead additional financial or administrative burdens involving predeprivation hearings when it already claims to provide an immediate post-deprivation hearing. Conn. Gen. Stat. §§ 52-278e(b) and (c) (1991); Fermont, 178 Conn., at 397-398, 423 A. 2d, at 83. Historical and contemporary practices support our analysis. Prejudgment attachment is a remedy unknown at common law. Instead, “it traces its origin to the Custom of London, under which a creditor might attach money or goods of the defendant either in the plaintiff’s own hands or in the custody of a third person, by proceedings in the mayor’s court or in the sheriff’s court.” Ownbey, 256 U. S., at 104. Generally speaking, attachment measures in both England and this country had several limitations that reduced the risk of erroneous deprivation which Connecticut permits. Although attachments ordinarily did not require prior notice or a hearing, they were usually authorized only where the defendant had taken or threatened to take some action that would place the satisfaction of the plaintiff’s potential award in jeopardy. See C. Drake, Law of Suits by Attachment, §§ 40-82 (1866) (hereinafter Drake); 1 R. Shinn, Attachment and Garnishment § 86 (1896) (hereinafter Shinn). Attachments, moreover, were generally confined to claims by creditors. Drake §§ 9-10; Shinn § 12. As we and the Court of Appeals have noted, disputes between debtors and creditors more readily lend themselves to accurate ex parte assessments of the merits. Tort actions, like the assault and battery claim at issue here, do not. See Mitchell, supra, at 609-610. Finally, as we will discuss below, attachment statutes historically required that the plaintiff post a bond. Drake §§ 114-183; Shinn § 153. Connecticut’s statute appears even more suspect in light of current practice." }, { "docid": "2802048", "title": "", "text": "claim would be an exigent circumstance permitting postponing any notice or hearing until after the attachment is effected. See Mitchell, supra, at 609, 94 S.Ct. at 1901; Fuentes, supra, at 90-92, 92 S.Ct. at 1999-2000; Sniadach, 395 U.S., 337 at 339, 89 S.Ct. 1820 at 1821, 23 L.Ed.2d 349. Absent such allegations, however, the plaintiff’s interest in attaching the property does not justify the burdening of Doehr’s ownership rights without a hearing to determine the likelihood of recovery. Doehr, — U.S. at —, 111 S.Ct. at 2115. As in Doehr, there is nothing in this case suggesting that a transfer or encumbrance of the parcels retained by the Reardons was imminent. And a special feature of CERCLA makes a claim of exigent circumstances even less likely than in the usual lien case. Under the CERCLA liability provisions, any subsequent owner of property who knew at the time of purchase that hazardous wastes were located on the premises would become liable for cleanup costs, and the property could be sold to satisfy a judgment against that subsequent owner. See 42 U.S.C. § 9607. Hence, the transfer of property would likely affect the government’s interest in recovering cleanup costs less than the average transfer would affect the interest of the average potential judgment creditor. c. The Added Burden of Additional Procedural Requirements. The due process calculus also involves consideration of “ ‘the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’ ” Doehr, — U.S. at —, 111 S.Ct. at 2112 (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976)). In this case, the minimum additional procedural requirements would be notice of an intention to file a notice of lien and provision for a hearing if the property owner claimed that the lien was wrongfully imposed. This would seem to be a relatively simple matter. Moreover, the Constitution certainly allows the process due to be tailored to fit the realities of the situation. Mitchell v. W.T. Grant Co., 416 U.S. at 610, 94 S.Ct. at 1901. For example, EPA may only" }, { "docid": "7198331", "title": "", "text": "by the mechanic’s lien to be a “taking of a significant property interest.” 379 F.Supp. at 999. In North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), the Court struck down Georgia’s prejudgment garnishment statute, which allowed a creditor to obtain an ex parte writ garnishing a debtor’s bank account after submitting an affidavit containing only conclusory allegations to a court clerk. Like the statutes in Fuentes, the Georgia statute also required a creditor to post a bond equal to double the amount of the debt due, and it allowed a debtor to regain possession of the property by filing a substitute bond. The Court held that, like the statutes in Fuentes, the Georgia statute violated the Due Process Clause because it lacked any requirement for an affidavit of probable cause, .or judicial oversight and included no provision for a hearing. Finally, in Doehr, supra, the Court struck down the statute implicated here as applied to defendants in intentional tort cases. The Doehr Court applied the three-prong test first articulated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), to determine whether Connecticut’s prejudgment attachment statute violated the Due Process Clause. First, the court must consider the private interests that will be affected by the prejudgment measure. Second, the court must examine the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards. And third, the court must consider the interest of the party seeking the prejudgment remedy. Doehr, — U.S. at-, 111 S.Ct. at 2112. With respect to the first prong, the Doehr Court ruled that an attachment affects a significant interest in real property even though the attachment of that interest did not amount to a complete, permanent deprivation of the property. Id. at -, 111 S.Ct. at 2113. With respect to the second prong, the Doehr Court struck down the application of section 52-278e(a)(l) to tort-feasors because it found the risk of an erroneous deprivation to be substantial. Id. at -, 111 S.Ct. at" }, { "docid": "18438623", "title": "", "text": "made to those in need from those obligated to support them”). Compare with Finberg v. Sullivan, 634 F.2d at 58 (debtor’s interest in access to bank accounts containing attachment-exempt social security benefits is “very compelling”); Deary v. Guardian Loan Co., 534 F.Supp. at 1186 (judgment debtors’ interest in possibly exempt assets is compelling where exemptions asserted “are designed to protect their means of purchasing the basic necessities of life”). Defendants simply choose to ignore the fact that in this case, plaintiff’s subsistence was entirely dependent upon receipt of his unemployment benefits. See generally Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976) (“our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail”); Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970) (“the crucial factor in this context — a factor not present in the case of ... virtually anyone else whose governmental entitlements are ended — is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits” (emphasis in original)). Next, defendants contend that unlike Deary and Finberg, where the challenged procedures provided for no notice prior to attachment of the debtors’ property, § 49-b permits income deduction only after the delinquent support payor has been given at least fifteen days notice of the impending interception. Defendants suggest that that fifteen day period provided ample time for plaintiff to have applied to the family court for a modification of the original support order. Defendants also seek to distinguish Deary and Finberg on factual grounds, contending that the property at" }, { "docid": "15944154", "title": "", "text": "law: That the hearing required by due process is subject to waiver, and is not fixed in form does not affect the root requirement that an individual be given an opportunity for a hearing before he . is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event. Id. at 82, 92 S.Ct. 1983. The Court held that the statutes’ requirements that a plaintiff post a bond, conclusionally allege an entitlement to specific goods, defend his claim at a prompt post-deprivation hearing, and open himself up to damages if in error did not sufficiently protect the defendant’s due process rights. Id. at 83-85, 92 S.Ct. 1983. In 1991, the Court invalidated a Connecticut statute that permitted a party suing for personal injuries to seek an ex parte, prejudgment attachment of the defendant’s real estate to guarantee the judgment. Doehr, 501 U.S. at 5, 111 S.Ct. 2105. The Court adopted á formal test for examining the provisional remedy, borrowing from Mathews v. Eldridge, 424 U.S. 319, 343-44, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976): - [T]he relevant inquiry requires, ... first, consideration of the private interest that will be affected by the prejudgment measure; second, an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards; and third, ... principal attention to-the interest of the ,,party seeking the prejudgment remedy, .with, nonetheless, due regard for any ancillary interest the government may have in providing the procedure or foregoing the added burden of providing greater protections. Doehr, 501 U.S. at 11, 111 S.Ct. 2105. In United States v. James Daniel Good Real Property, 510 U.S. 43, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993), the Court held that the Fifth Amendment’s Due Process Clause requires notice and an opportunity to be heard in civil forfeiture proceedings for real estate. The Court, employing language originally used in Fuentes, stated, “We tolerate some exceptions to the general rule requiring predeprivation notice and hearing, but only in ‘extraordinary" }, { "docid": "18451908", "title": "", "text": "discharge hearing, the goal of minimizing the impact on the debtor of a wrongful attachment has been undermined. Guzman v. Western State Bank of Devils Lake, North Dakota, 516 F.2d 125, 131 (8th Cir. 1975). Plaintiff has not asserted an argument founded in reason or logic as to why procedural safeguards should be less stringent in foreign attachment situations than in other “extraordinary situations” which must satisfy the tripartite test of Fuentes, other than the important public interest in securing jurisdiction in a convenient forum for its residents. The Court fails to see how this interest justifies dispensing with procedural safeguards which minimize the risk of a wrongful taking and involve little fiscal and administrative burdens on the state. The analysis requires consideration of three distinct factors: “first, the private interest that will be affected . . . ; second, the risk of an erroneous deprivation of such interest . . . and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the [state] interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335 [96 S.Ct. 893, 47 L.Ed.2d 18] (1976). Cf. Arnett v. Kennedy, 416 U.S. 134, 167-168 [94 S.Ct. 1633, 40 L.Ed.2d 15] (1974) (Powell, J. concurring). Ingraham v. Wright, - U.S. at -, 97 S.Ct. at 1414. It cannot be disputed that the private interest involved in foreign attachment cases are as significant as the private interest in other seizures. In fact, the interest in foreign attachments may be even more substantial. The debtor is not only deprived of the use of his property, but may also be forced to either defend a lawsuit in an inconvenient forum which would, absent quasi in rem jurisdiction, offend “traditional notions of fair play and substantial justice,” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), or forego his defense because of inability to defend in a foreign state. Finally, plaintiff urges the Court to follow Ownbey as the only Supreme" }, { "docid": "7198332", "title": "", "text": "test first articulated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), to determine whether Connecticut’s prejudgment attachment statute violated the Due Process Clause. First, the court must consider the private interests that will be affected by the prejudgment measure. Second, the court must examine the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards. And third, the court must consider the interest of the party seeking the prejudgment remedy. Doehr, — U.S. at-, 111 S.Ct. at 2112. With respect to the first prong, the Doehr Court ruled that an attachment affects a significant interest in real property even though the attachment of that interest did not amount to a complete, permanent deprivation of the property. Id. at -, 111 S.Ct. at 2113. With respect to the second prong, the Doehr Court struck down the application of section 52-278e(a)(l) to tort-feasors because it found the risk of an erroneous deprivation to be substantial. Id. at -, 111 S.Ct. at 2114. The low standard of proof required in the affidavit of probable cause combined with the inability of a court to predict with precision the outcome of an intentional tort case with all of its complex variables outweighed the procedural safeguards provided by the postdeprivation hearing. Id. In applying the third prong of its test, the Doehr Court found that the plaintiff had no existing interest in the defendant’s real property when he sought the attachment. His only interest in attaching the property was to ensure the availability of assets to satisfy his judgment if he prevailed on the merits of his tort action. Id. at-, 111 S.Ct. at 2115. Five members of the Doehr Court declined to address the issue of whether the failure of section 52-278e(a)(l) to require that a plaintiff post a security bond violated the Due Process Clause. A plurality of four Justices, however, reached this issue and stated that due process required a plaintiff to post a security bond to obtain a prejudgment attachment. The plurality reasoned that a bond" }, { "docid": "14876529", "title": "", "text": "collection procedures.” (Appellants’ App. at 116, 118.) The letter does not inform the plaintiffs of the state’s settlement power, but rather gives the impression to the plaintiffs who have no discretionary funds (which, given the low-income status of the class members, is likely a common situation) that they have no alternative but to agree to reduce their future allotment of food stamps. Given the circumstances of this case, particularly the financial status of the plaintiffs and the fact that it is the state’s own error that has created this predicament, we have difficulty believing that this notice is “reasonably calculated ... to afford [the plaintiffs] an opportunity to present their objections.” Mullane, 339 U.S. at 314, 70 S.Ct. at 657. We therefore conclude that the notice is inadequate. Cf. Aacen v. San Juan County Sheriff’s Dep’t, 944 F.2d 691, 698-99 (10th Cir.1991) (holding that notice regarding a judgment execution must inform the debtor, who likely has few assets or cash reserves, that various state exemptions as to real and personal property exist); Finberg v. Sullivan, 634 F.2d 50, 62 (3d Cir.1980) (en banc) (holding that a debtor whose sole source of income was her social security retirement benefits was entitled to be informed that the benefits were exempt from attachment and garnishment). The familiar, three-part test laid out by the Supreme Court in Mathews v. Eldridge supports our conclusion. Under the Mathews framework, we consider first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and agency burdens that the additional or sub- stitute procedural requirement would entail. Mathews, 424 U.S. at 335, 96 S.Ct. at 903. As explained above, we believe the general need for adequate notice and a hearing concerning an alleged overpayment of food stamps is clear under Supreme Court precedent. Applying the Mathews test to the plaintiffs’ specific request for notice of the state agency’s settlement" }, { "docid": "22632988", "title": "", "text": "event.’” Id., at 82 (quoting Boddie v. Connecticut, 401 U. S. 371, 379 (1971)); United States v. $8,850, 461 U. S., at 562, n. 12. Whether the seizure of real property for purposes of civil forfeiture justifies such an exception requires an examination of the competing interests at stake, along with the promptness and adequacy of later proceedings. The three-part inquiry set forth in Mathews v. Eldridge, 424 U. S. 319 (1976), provides guidance in this regard. The Mathews analysis requires us to consider the private interest affected by the official action; the risk of an erroneous deprivation of that interest through the procedures used, as well as the probable value of additional safeguards; and the Government’s interest, including the administrative burden that additional procedural requirements would impose. Id., at 335. Good’s right to maintain control over his home, and to be free from governmental interference, is a private interest of historic and continuing importance. Cf. United States v. Karo, 468 U. S. 706, 714-716 (1984); Payton v. New York, 446 U. S. 673, 690 (1980). The seizure deprived Good of valuable rights of ownership, including the right of sale, the right of occupancy, the right to unrestricted use and enjoyment, and the right to receive rents. All that the seizure left him, by the Government’s own submission, was the right to bring a claim for the return of title at some unscheduled future hearing. In Fuentes, we held that the loss of kitchen appliances and household furniture was significant enough to warrant a predeprivation hearing. 407 U. S., at 70-71. And in Connecticut v. Doehr, 501 U. S. 1 (1991), we held that a state statute authorizing prejudgment attachment of real estate without prior notice or hearing was unconstitutional, in the absence of extraordinary circumstances, even though the attachment did not interfere with the owner’s use or possession and did not affect, as a general matter, rentals from existing leaseholds. The seizure of a home produces a far greater deprivation than the loss of furniture, or even attachment. It gives the Government not only the right to prohibit sale," } ]

[ { "docid": "21679301", "title": "", "text": "Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). “The McDonnell Douglas formula, however, is applicable only in a directed verdict or summary judgment situation,” and “is not the proper vehicle for evaluating a case that has been fully tried on the merits.” Powell v. Rockwell Int’l Corp., 788 F.2d 279, 285 (5th Cir.1986). Thus, Ratliff's, holding that Reeves also guides the evaluation of cases fully tried on the merits appears to be in tension with Reeves and our own precedent. Second, Reeves did not change what a plaintiff must ultimately prove to prevail on their claim — that the adverse employment action was motivated by actual discriminatory intent. Reeves, 530 U.S. at 147, 120 S.Ct. 2097 (“In other words, ‘[i]t is not enough to disbelieve the employer; the factfinder must believe the plaintiffs explanation of intentional discrimination.’ ”) (emphasis in original) (internal citations omitted). This Court has consistently held that district courts should not frame jury instructions based upon the intricacies of the McDonnell Douglas burden shifting analysis. See, e.g., Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir.1992) (“Instructing the jury on the elements of a prima facie case, presumptions, and the shifting burden of proof is. unnecessary and confusing.”); Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471, 1478 (5th Cir.1992) (same). Instead, we have held that district courts should instruct the jury to consider the ultimate question of whether a defendant took the adverse employment action against a plaintiff because of her protected status. Cf. Walther, 952 F.2d at 127; Olitsky, 964 F.2d at 1478. Before Ratliff we only required district courts to instruct juries on the ultimate question they must answer; Reeves did not change this. ■ Consequently we should not have interpreted Reeves to alter the instructions that district courts are required to give to a jury. Third, the pretext inference described in Reeves is merely a permissive and not a mandatory inferencé. See Reeves, 530 U.S. at 148, 120 S.Ct. 2097 (noting that “there will be instances where, although the plaintiff has established a prima" } ]

[ { "docid": "18131193", "title": "", "text": "230, 234 (5th Cir.2009)). . 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (providing this standard when an officer faces a fleeing suspect); see also Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir.2008) (applying the same standard to a non-fleeing suspect). . Graham, 490 U.S. at 397, 109 S.Ct. 1865. . Id. at 396, 109 S.Ct. 1865. . Id. . Id. at 396-97, 109 S.Ct. 1865. . Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir.2011) (quoting Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 493 (5th Cir.2001)) (emphasis omitted). . Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). . Tolan v. Cotton, - U.S. -, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (per curiam) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (\"[T]he court ' ... may not make credibility determinations.” (citing Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990))). . Lytle v. Bexar Cnty., 560 F.3d 404, 413 (5th Cir.2009). . Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (providing this standard when an offic'er faces a fleeing suspect); see also Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir.2008) (applying the same standard to a non-fleeing suspect). . See Plumhoff v. Rickard, — U.S.-, 134 S.Ct. 2012, 2022; 188 L.Ed.2d 1056 (2014) (suggesting, in dicta, that a Fourth Amendment violation might occur if the defendant officers \"had initiated a second round of shots after an initial round had clearly incapacitated” the decedent); see also Bush v. Strain, 513 F.3d 492, 502 (5th Cir.2008) (holding that an officer cannot use further non-deadly force against a \"restrained and subdued” suspect). Cir.2002) (en banc) (“[I]n the absence of directly controlling authority, a consensus of cases of persuasive authority might, under some circumstances, be sufficient to compel the conclusion that no reasonable officer could have" }, { "docid": "21212118", "title": "", "text": "accord EMCASCO Ins. Co. v. American Int’l Specialty Lines Ins. Co., 438 F.3d 519, 523 (5th Cir.2006); Cooper Tire & Rubber Co., 423 F.3d at 454; Harken Exploration Co., 261 F.3d at 471; Merritt-Campbell, Inc., 164 F.3d at 961. The moving party, however, need not negate the elements of the nonmovants’ case. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)). Once a proper motion has been made, the nonmoving parties may not rest upon mere allegations or denials in the pleadings but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322 n. 3, 106 S.Ct. 2548 (citing Fed. R. Civ. P. 56(e)); Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 11, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); EMCASCO Ins. Co., 438 F.3d at 523; Smith ex rel. Estate of Smith v. United States, 391 F.3d 621, 625 (5th Cir.2004); Malacara v. Garber, 353 F.3d 393, 404 (5th Cir.2003); Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir.1999), cert. denied, 528 U.S. 1160, 120 S.Ct. 1171, 145 L.Ed.2d 1080 (2000). “[T]he court must review the record ‘taken as a whole.’ ” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348); see Riverwood Int’l Corp. v. Employers Ins. of Wausau, 420 F.3d 378, 382 (5th Cir.2005). All the evidence must be construed “in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes.” Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir.1996); see Reeves, 530 U.S. at 150, 120 S.Ct. 2097; Lincoln Gen. Ins. Co., 401 F.3d at 350; Smith, 391 F.3d at 624; Malacara, 353 F.3d" }, { "docid": "23511979", "title": "", "text": "Sullivan v. Rowan Co., 952 F.2d 141, 149 (5th Cir.1992) (citing Matherne v. Wilson, 851 F.2d 752, 762 (5th Cir.1988)). This is especially true in light of the prior declaration of a mistrial. Consequently, we need not address the standard of review for jury instructions. . Sullivan, 952 F.2d at 149. . Hagan v. Echostar Satellite L.L.C., No. H-05-1365, 2007 WL 543441, at *4 (S.D.Tex. Feb. 16, 2007). . See, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141-42, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Palasota v. Haggar Clothing Co., 342 F.3d 569 (5th Cir.2003) (per curiam). . Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 575 n. 5 (5th Cir.2004). . See, e.g., Palasota, 342 F.3d at 574 (5th Cir.2003) (per curiam) (citing Scott v. Univ. of Mississippi, 148 F.3d 493, 504 (5th Cir.1998)); Kanida, 363 F.3d at 575 (citing Powell v. Rockwell Int’l Corp., 788 F.2d 279, 285 (5th Cir.1986)); Thomas v. Texas Dept. of Criminal Justice, 220 F.3d 389, 394 (5th Cir.2000) (citing Baltazor v. Holmes, 162 F.3d 368, 373 (5th Cir.1998) (citing, in turn, Harrington v. Harris, 118 F.3d 359, 367 (5th Cir.1997))). We note that each of these cited cases involved a jury verdict in the plaintiff's favor, whereas the instant case ended in a hung jury and the district court’s declaring a mistrial. .Kanida, 363 F.3d at 576 (citing Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir.1992) and Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471, 1478 (5th Cir.1992)). . In U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), involving a Title VII bench trial, the Supreme Court reasoned that the McDonnell Douglas burden-shifting analysis drops out (i.e., the district court should examine the “ultimate question,” in our phrasing) when, inter alia, “the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case.” Id. at 714. In Aikens, the district court had previously denied the defendant’s motion for judgment as a matter of law, which the Supreme" }, { "docid": "11191169", "title": "", "text": "motivating factor for his non-hire was his age, then you may find for Mr. Ratliff. This Court reviews jury instructions for harmful error. Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 404 (5th Cir.2000), reh’g en banc denied, 232 F.3d 212, cert. denied, — U.S. —, 121 S.Ct. 1393, 149 L.Ed.2d 316 (2001). “Even if an instruction erroneously states the applicable law or provides insufficient guidance, this Court will not disturb the judgment unless the error could have affected the outcome of the trial.” Id. However, “[challenges to jury instructions are reviewed to determine whether the court’s charge, as a whole, is a correct statement of the law and clearly instructs jurors on the legal principles at issue.” Id. A. Inference Instruction Ratliff cites Reeves v. Sanderson Plumbing Products, Inc., 580 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), in support of his arguments that the trial court erred when it failed to give the jury the inference and “permissive pretext only” instructions. The Reeves Court stated that “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.” 530 U.S. at 148, 120 S.Ct. 2097. In contrast, Gainesville counters that the jury instructions were correct, given that the trial judge’s General Instructions to the jury complied with The Fifth Circuit Pattern Jury Charges. With respect to the inference instruction, the City also states it would have simply been a redundancy and notes that this Circuit requires no such instruction. We, however, find Ratliffs argument persuasive, in light of the Supreme Court’s admonition in Reeves, as well as our precedent post-Reeves rejecting district court judgments that have not comported with Reeves. See, e.g., Blow v. City of San Antonio, Tex., 236 F.3d 293, 297 (5th Cir.2001), reh’g en banc denied, 250 F.3d 745 (5th Cir.2001) (finding that the district court’s reasoning was inconsistent with Reeves when it granted summary judgment for the defendant'because it found no summary judgment evidence connecting the failure to hire the plaintiff with" }, { "docid": "22413442", "title": "", "text": "v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The district court’s opinion states that Rachid did not establish a prima facie case, and later notes that “nothing in the record suggests that J[IB]’s basis for terminating Rachid was a pretext.” The term “pretext” strongly suggests that the district court engaged in a McDonnell Douglas burden shifting analysis. See McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817. It is disputed, however, whether this is the proper legal framework. (1) Age discrimination under the ADEA pre-Desert Palace. Under the ADEA, “[i]t shall be unlawful for an employer ... to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such indi vidual’s age.” 29 U.S.C. § 623(a)(1). “When a plaintiff alleges disparate treatment, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer’s decision.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)). To demonstrate age discrimination a “plaintiff must show that ‘(1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age.’ ” Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir.2003) (quoting Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir.1993)). That is, regardless of how much younger his replacement is, a plaintiff in the protected class may still establish a prima facie case by producing evidence that he was “discharged because of his age.” Palasota, 342 F.3d at 576 (quotations omitted). A plaintiff can demonstrate age discrimination in two ways, either through: direct evidence or by an indirect or inferential method of proof. Discrimination can be shown indirectly by following the “pretext” method of proof set out in McDonnell Douglas" }, { "docid": "22916878", "title": "", "text": "v. FBL Fin. Servs., Inc., - U.S. -, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009). . See Vogel v. Veneman, 276 F.3d 729, 733 (5th Cir.2002). . See Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir.2003). . 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). . See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (explaining that \"[fjirst, the plaintiff must establish a prima facie case of discrimination,\" which shifts to respondent the burden to \"produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason .... This burden is one of production, not persuasion; it ‘can involve no credibility assessment.' ” If this burden is met, the plaintiff \"must be afforded the 'opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.' ” (internal citations omitted)). . Id. at 143, 120 S.Ct. 2097 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). . See Gross v. PBL Fin. Servs., Inc., - U.S. -, 129 S.Ct. 2343, 2349 n. 2, 174 L.Ed.2d 119 (2009) (\"[T]he Court has not definitively decided whether the evidentiary framework of [McDonnell Douglas], utilized in Title VII cases is appropriate in the ADEA context.\"). . See Baker v. Am. Airlines, Inc., 430 F.3d 750, 753 (5th Cir.2005); Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir.2005); Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir.2004); Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896-97 (5th Cir.2002); Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir.1993). . Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir.2007) (internal quotation marks and citation omitted). . See 29 U.S.C. § 631(a) (protecting individuals \"who are at least 40 years of age\"). . See O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996) (explaining that replacement by" }, { "docid": "3183335", "title": "", "text": "on appeal that the district court erred in failing to grant its post-judgment motion styled “renewed motion for judgment as a matter of law and alternative motion for new trial.” TDCJ further contends that the district court made several erroneous evidentiary and other trial rulings that resulted in TDCJ receiving an unfair trial. TDCJ also argues that the district court erred in its charge to the jury by including racial discrimination in the jury interrogatory on housing, and by referring to housing as an emolument in the jury charge. Finally, TDCJ contends that the trial court erred in entering a permanent injunction against TDCJ. I. Judgment as a Matter of Law and Alternative Motion for New Trial A. Standard of Review TDCJ challenges the district court’s denial of its renewed post judgment motion for judgment as a matter of law, and its alternative motion for a new trial. This court reviews a motion for new trial for abuse of discretion. See Keeler Richards Manufacturing Co., Inc., 817 F.2d 1197 (5th Cir.1987). We review a district court’s denial of a motion for judgment as a matter of law de novo. See Scott v. University of Mississippi 148 F.3d 493, 504 (5th Cir.1998) (citing Travis v. Board of Regents of the Univ. of Tex. Sys., 122 F.3d 259, 263 (5th Cir.1997), cert. denied, 522 U.S. 1148, 118 S.Ct. 1166, 140 L.Ed.2d 176 (1998)). “A motion for judgment as a matter of law ... in an action tried by jury is a challenge to the legal sufficiency of the evidence supporting the jury’s verdict.” Harrington v. Harris, 118 F.3d 359, 367 (5th Cir.1997) (internal quotations and citation omitted). If reasonable persons could differ in their interpretation of the evidence, then the motion should be denied. Baltazor v. Holmes, 162 F.3d 368, 373 (5th Cir.1998). A post-judgment motion for judgment as a matter of law should only be granted when “the facts and inferences point so strongly in favor of the movant that a rational jury could not reach a contrary verdict.” Waymire v. Harris County, Texas, 86 F.3d 424, 427 (5th Cir.1996). We" }, { "docid": "23018625", "title": "", "text": "Johnson described the balance of Mota’s leave period as \"administrative leave.” . See Stokes v. Emerson Elec. Co., 217 F.3d 353, 356 (5th Cir.2000). . See id. . Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting 9A C. Wright & A. Miller, Federal Practice and Procedure § 2529 (2d ed.1995)); see also id. at 150, 120 S.Ct. 2097 (noting that the standard governing motions for judgment as a matter of law mirrors the summary judgment standard of review). . Arnold v. U.S. Dep't of Interior, 213 F.3d 193, 198 (5th Cir.2000). . See 42 U.S.C. § 2000e-3(a) (2001); Evans v. City of Houston, 246 F.3d 344, 352-53 (5th Cir.2001). . Walker v. Thompson, 214 F.3d 615, 629 (5th Cir.2000) (quoting Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir.1995) (per curiam)). . Id. at 629. . Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir.1999). . See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Ratliff v. City of Gainesville, 256 F.3d 355, 2001 WL 736004, at *3-*4 (5th Cir. July 17, 2001). . Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). . See id. at 762-63, 118 S.Ct. 2257. . The jury charge read in relevant part: A “tangible employment action” means a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Such an action in most cases inflicts direct economic harm. Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates, and require an official act of the company. .The court instructed the jury that “[a]n adverse employment action is a significant change in employment status and includes discharge, demotion, refusal to promote, denial of leave request, change in compensation, or a major change in responsibilities.\" . For instance, ostracism by fellow employees does not constitute an \"ultimate employment decision.” See Mattern" }, { "docid": "3183336", "title": "", "text": "court’s denial of a motion for judgment as a matter of law de novo. See Scott v. University of Mississippi 148 F.3d 493, 504 (5th Cir.1998) (citing Travis v. Board of Regents of the Univ. of Tex. Sys., 122 F.3d 259, 263 (5th Cir.1997), cert. denied, 522 U.S. 1148, 118 S.Ct. 1166, 140 L.Ed.2d 176 (1998)). “A motion for judgment as a matter of law ... in an action tried by jury is a challenge to the legal sufficiency of the evidence supporting the jury’s verdict.” Harrington v. Harris, 118 F.3d 359, 367 (5th Cir.1997) (internal quotations and citation omitted). If reasonable persons could differ in their interpretation of the evidence, then the motion should be denied. Baltazor v. Holmes, 162 F.3d 368, 373 (5th Cir.1998). A post-judgment motion for judgment as a matter of law should only be granted when “the facts and inferences point so strongly in favor of the movant that a rational jury could not reach a contrary verdict.” Waymire v. Harris County, Texas, 86 F.3d 424, 427 (5th Cir.1996). We accord great deference to the jury’s verdict when evaluating the sufficiency of the evidence, viewing all the evidence and drawing all reasonable inferences in the light most favorable to the verdict. Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir.1996) (en banc) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc), overruled on other grounds). Under the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) framework, the plaintiff must first establish a prima' facie case by a preponderance of the evidence; once established, the prima facie case raises an inference of unlawful discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). The burden of production then shifts to the defendant to proffer a legitimate, nondiscriminatory reason for the challenged employment action. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993). If the defendant meets its burden, the presumption raised by" }, { "docid": "23511980", "title": "", "text": "F.3d 368, 373 (5th Cir.1998) (citing, in turn, Harrington v. Harris, 118 F.3d 359, 367 (5th Cir.1997))). We note that each of these cited cases involved a jury verdict in the plaintiff's favor, whereas the instant case ended in a hung jury and the district court’s declaring a mistrial. .Kanida, 363 F.3d at 576 (citing Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir.1992) and Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471, 1478 (5th Cir.1992)). . In U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), involving a Title VII bench trial, the Supreme Court reasoned that the McDonnell Douglas burden-shifting analysis drops out (i.e., the district court should examine the “ultimate question,” in our phrasing) when, inter alia, “the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case.” Id. at 714. In Aikens, the district court had previously denied the defendant’s motion for judgment as a matter of law, which the Supreme Court interpreted to be a ruling that the plaintiff had made out a prima facie case. Id. at 714 n. 4. In the instant case, the district court had merely reserved ruling on Echostar's prior motions for judgment as a matter of law and so had not yet addressed Echostar's arguments regarding Hagan's pri-ma facie case. . Brennan, 513 F.2d at 180. . Romeo, 976 F.2d at 989. . White & Son Enters., 881 F.2d at 1011. . Love, 738 F.2d at 384, 386. . York, 944 F.2d at 238. . Id. . Id. at 237, 241; Pub.L. No. 99-150, § 8, 99 Stat. 791. The note provides in full: Liability of Public Agency for Discrimination Against Employee for Assertion of Coverage Pub.L. 99-150, § 8, Nov. 14, 1985, 99 Stat. 791, provided that: “A public agency which is a State, political subdivision of a State, or an interstate governmental agency and which discriminates or has discriminated against an employee with respect to the employee’s wages or other terms or conditions of employment because on" }, { "docid": "3570398", "title": "", "text": "younger employee and that evidence of treatment of other Sales Associates after Palasota left Haggar was not probative of whether age was a determinative factor in Palasota’s discharge. Relying on a case predating Reeves v. Sanderson Plumbing Prods., Inc., 580 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), the court ruled that a reasonable jury could not conclude “without any inferences or presumptions” that age was a determinative factor in the company’s termination decision. Further, the court found that all of the age-related comments made by Haggar’s management were “stray remarks” and therefore not probative of discriminatory intent. ANALYSIS We review the district court’s grant of judgment as a matter of láw de novo. Raggs v. Miss. Power & Light Co., 278 F.3d 463, 467 (5th Cir.2002). We must examine all the evidence in the record as a whole and draw all reasonable inferences in favor of Palasota. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 137, 151, 120 S.Ct. 2097 (2000). We do not, however, assess credibility of witnesses or otherwise weigh the evidence. Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990). Under the ADEA, it is “unlawful for an employer ... to discharge any individual or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). “When a plaintiff alleges disparate treatment, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer’s decision.” In other words, the plaintiffs age “must have actually played a role” in the employer’s decision making process. Id. Where a case has been fully tried, it is unnecessary to “parse the evidence into discrete segments corresponding to the different stages” of the McDonnell Douglas framework. Scott v. Univ. of Mississippi, 148 F.3d 493, 504 (5th Cir.1998) (citation omitted). Rather, the panel should examine whether the plaintiff has met his ultimate burden of proving that the employer terminated him because of age. Id. Judgment as a Matter of Law should not be granted unless “the facts" }, { "docid": "23157012", "title": "", "text": "U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). III. DISCUSSION The issue before this Court is whether the magistrate judge erred in granting judgment as a matter of law in favor of MP&L with respect to Raggs’ claims of racial discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. We agree with the magistrate judge in this case. Based on the evidence presented at trial, there is no legally sufficient evidentiary basis for a reasonable jury to find in favor of Raggs. A. The Burden-Shifting Framework for Discrimination Cases. This Court considers claims of intentional discrimination, which include racial discrimination and retaliation claims based on Title VII and 42 U.S.C. § 1981, under the same rubric of analysis. See, e.g., Byers v. Dallas Morning News, Inc., 209 F.3d 419, 422 n. 1 (5th Cir.2000); Harrington v. Harris, 118 F.3d 359, 367 (5th Cir.1997); LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir.1996); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996); Anderson v. Douglas & Lomason Co., Inc., 26 F.3d 1277, 1284 n. 7 (5th Cir.1994). In Reeves v. Sanderson Plumbing Products, Inc., the Supreme Court reviewed the burden-shifting framework that governs- these discrimination claims, and the relationship of that framework to a Rule 50 motion. 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). To sustain a claim under this framework, the plaintiff must first establish a prima facie case of discrimination. Reeves, 530 U.S. at 142, 120 S.Ct. 2097. Aprima facie case can generally be satisfied if the plaintiff (1) is a member of a protected class, (2) he was qualified for the position that he held before being discharged, (3) he was discharged, and (4) his employer filled the position with a person who is not a member of the protected class. See, e.g., Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir.1990); see also, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 & n. 13, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If,the plaintiff establishes a prima" }, { "docid": "22251050", "title": "", "text": "Int’l Ins. Co. v. RSR Corp., 426 F.3d 281, 296 (5th Cir.2005) (citing Cozzo v. Tangipahoa Parish Council-President Gov’t, 279 F.3d 273, 280 (5th Cir.2002)); see also Lyrick Studios, Inc. v. Big Idea Prod., Inc., 420 F.3d 388, 391 (5th Cir.2005); Serna v. City of San Antonio, 244 F.3d 479, 481 (5th Cir.2001). But when a case is tried by a jury, a Rule 50(a) motion is a challenge to the legal sufficiency of the evidence. Int’l Ins. Co., 426 F.3d at 296 (citing Brown v. Bryan County, 219 F.3d 450, 456 (5th Cir.2000)). In resolving such challenges, we draw all reasonable inferences and resolve all credibility determinations in the light most favorable to the nonmoving party. Id. (citing Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). Thus, we will reverse the denial of a Rule 50(a) motion only if the evidence points so strongly and so overwhelmingly in favor of the nonmoving party that no reasonable juror could return a contrary verdict. Id. (citing Cousin v. Trans Union Corp., 246 F.3d 359, 366 (5th Cir.2001)). A jury verdict must be upheld unless “there is no legally sufficient evidentiary basis for a reasonable jury to find” as the jury did. Id. at 296-97 (citing Fed.R.Civ.P. 50(a)(1); Hiltgen v. Sumrall, 47 F.3d 695, 700 (5th Cir.1995)). This court has consistently applied this standard to show appropriate deference for the jury’s determination. As we have explained: A jury may draw reasonable inferences from the evidence, and those inferences may constitute sufficient proof to support a verdict. On appeal we are bound to view the evidence and all reasonable inferences in the light most favorable to the jury’s determination. Even though we might have reached a different conclusion if we had been the trier of fact, we are not free to re-weigh the evidence or to re-evaluate credibility of witnesses. We must not substitute for the jury’s reasonable factual inferences other inferences that we may regard as more reasonable. Id. (citing Hiltgen, 47 F.3d at 700); Rideau v. Parkem Indus. Serv., Inc., 917 F.2d" }, { "docid": "23511978", "title": "", "text": "Cir.1994) (adopting Brock’s interpretation in holding that the FLSA “protects employees who are discharged based on their employer’s mistaken belief that they reported violations or otherwise engaged in protected activity.”). Hagan had not engaged in protected activity, and the documents that Hagan points to do not indicate that the company believed Hagan himself had sought a lawyer or taken other arguably protected actions. It is unnecessary for us to agree or disagree with the Third and Eighth Circuits on this issue; even under their interpretation, the reference in the file memo does not create a legally sufficient eviden-tiary basis to find for Hagan on the issue. VIII. For the foregoing reasons the district court’s Rule 50 grant of judgment as a matter of law in favor of the defendants-appellees, Echostar Satellite, L.L.C. and Echosphere, L.L.C., is affirmed. AFFIRMED. . Hagan also argues that the district court’s jury instructions were in error. However, because we find that the district court properly granted judgment as a matter of law, any arguments concerning the jury instructions are moot. Sullivan v. Rowan Co., 952 F.2d 141, 149 (5th Cir.1992) (citing Matherne v. Wilson, 851 F.2d 752, 762 (5th Cir.1988)). This is especially true in light of the prior declaration of a mistrial. Consequently, we need not address the standard of review for jury instructions. . Sullivan, 952 F.2d at 149. . Hagan v. Echostar Satellite L.L.C., No. H-05-1365, 2007 WL 543441, at *4 (S.D.Tex. Feb. 16, 2007). . See, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141-42, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Palasota v. Haggar Clothing Co., 342 F.3d 569 (5th Cir.2003) (per curiam). . Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 575 n. 5 (5th Cir.2004). . See, e.g., Palasota, 342 F.3d at 574 (5th Cir.2003) (per curiam) (citing Scott v. Univ. of Mississippi, 148 F.3d 493, 504 (5th Cir.1998)); Kanida, 363 F.3d at 575 (citing Powell v. Rockwell Int’l Corp., 788 F.2d 279, 285 (5th Cir.1986)); Thomas v. Texas Dept. of Criminal Justice, 220 F.3d 389, 394 (5th Cir.2000) (citing Baltazor v. Holmes, 162" }, { "docid": "18131192", "title": "", "text": "757, 761 (5th Cir.2012). . Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). . Newman, 703 F.3d at 761. . Fed.R.Civ.P. 56(a). . Newman, 703 F.3d at 761 (quoting Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir.2009) (per curiam)). . Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). . Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir.2000) (citing Leffall v. Dall. Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.1994)). . Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir.2009). . Id. . Id. (quoting Wallace v. Cnty. of Comal, 400 F.3d 284, 289 (5th Cir.2005)). . Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). . Id. at 232, 129 S.Ct. 808. . Id. . Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). . Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir.2011) (quoting Hill v. Carroll Cnty., Miss., 587 F.3d 230, 234 (5th Cir.2009)). . 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (providing this standard when an officer faces a fleeing suspect); see also Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir.2008) (applying the same standard to a non-fleeing suspect). . Graham, 490 U.S. at 397, 109 S.Ct. 1865. . Id. at 396, 109 S.Ct. 1865. . Id. . Id. at 396-97, 109 S.Ct. 1865. . Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir.2011) (quoting Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 493 (5th Cir.2001)) (emphasis omitted). . Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). . Tolan v. Cotton, - U.S. -, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (per curiam) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (\"[T]he court ' ... may not make credibility determinations.” (citing" }, { "docid": "22916877", "title": "", "text": "is insufficient to establish a genuine issue of material fact as to pretext. There is substantial evi dence that Jackson was fired for violation of Cal-Western’s sexual harassment policy, and Jackson’s only contravention of that evidence comes from his own assertions. Without more, we simply cannot conclude that there is a triable issue of fact as to whether Cal-Western discriminated against Jackson based on age. Because no genuine issue of material fact exists as to Jackson’s claim under the ADEA, we AFFIRM the district court’s grant of summary judgment for Cal-Western. . DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th Cir.2005). . E.E.O.C. v. WC&M Enters., Inc., 496 F.3d 393, 398 (5th Cir.2007). . Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir.1998). . Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir.2002). . Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.2008). . Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). . Sandstad, 309 F.3d at 896. . Gross v. FBL Fin. Servs., Inc., - U.S. -, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009). . See Vogel v. Veneman, 276 F.3d 729, 733 (5th Cir.2002). . See Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir.2003). . 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). . See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (explaining that \"[fjirst, the plaintiff must establish a prima facie case of discrimination,\" which shifts to respondent the burden to \"produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason .... This burden is one of production, not persuasion; it ‘can involve no credibility assessment.' ” If this burden is met, the plaintiff \"must be afforded the 'opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.' ” (internal citations omitted)). . Id. at 143, 120 S.Ct. 2097 (quoting Tex." }, { "docid": "10693637", "title": "", "text": "court’s denial of a motion for judgment as a matter of law. Cantu v. Jones, 293 F.3d 839, 844 (5th Cir.2002) (citing Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir.2001)). “Federal Rule of Civil Procedure 50(a) states that a court should render a judgment as a matter of law when ‘a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.’ ” Phillips ex rel. Phillips v. Monroe County, Miss., 311 F.3d 369, 373 (5th Cir.2002) (quoting Fed.R.Civ.P. 50(a)). In Reeves v. Sanderson Plumbing Products, Inc., the Supreme Court clarified the approach a court should use when granting a judgment as a matter of law. First, we must review the record taken as a whole. Second, in reviewing all of the evidence in the record, we must draw all reasonable inferences in favor of the nonmoving party and not make credibility determinations or weigh the evidence. In other words, we must give credence to the evidence supporting the nonmovant as well as any evidence supporting the moving party that is uncon-tradicted, unimpeached, and not attributable to interested witnesses. Id. (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citations and quotation marks omitted)). We will therefore review all of the evidence in the record, drawing all reasonable inferences in favor of West. See id. (citing Reeves, 530 U.S. at 150, 120 S.Ct. 2097). “When reviewing the denial of j.m.L, we must review the sufficiency of the evidence and consider whether reasonable and fair-minded people could reach the same conclusion.” Thomas v. Tex. Dep’t of Criminal Justice, 297 F.3d 361, 367 (5th Cir.2002) (citing Polanco v. City of Austin, Tex., 78 F.3d 968, 974 (5th Cir.1996)). When a case is tried to a jury Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 653 (5th Cir.2002) (citations omitted). it is the function of the jury to weigh evidence. Attributing weight to conflicting evidence and drawing inferences" }, { "docid": "23511954", "title": "", "text": "the proceeding as “hopelessly deadlocked” in its final note to the court. The district court then declared a mistrial and informed the parties that it would rule on Echostar’s pending Rule 50 motion. On February 16, 2007, in an unpublished memorandum and order, the district court granted judgment as a matter of law in favor of Echostar. Hagan v. Echostar Satellite L.L.C., No. H-05-1365, 2007 WL 543441 (S.D.Tex. Feb. 16, 2007). Hagan now appeals from that judgment. II. The primary inquiry in this appeal is whether the district court appropriately granted judgment as a matter of law in favor of Echostar pursuant to Fed.R.Civ.P. 50. We have previously explained the standard of review for the grant or denial of a motion for judgment as a matter of law as follows: We review a district court’s ruling on a Rule 50(a) motion for judgment as a matter of law de novo. Resolution Trust Corp. v. Cramer, 6 F.3d 1102, 1109 (5th Cir.1993). Under this standard, we view all of the evidence “in the light and with all reasonable inferences most favorable to the party opposed to the motion.” Id. (citation omitted). A district court may not grant a Rule 50(a) motion “unless a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” Fitzgerald v. Weasler Engineering, Inc., 258 F.3d 326, 337 (5th Cir.2001). This court reviews a jury’s verdict for sufficiency of the evidence by determining whether reasonable and fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions .... A mere scintilla is insufficient to present a question for the jury .... However, it is the function of the jury as the traditional finder of facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses. MacArthur v. Univ. of Tex. Health Ctr. at Tyler, 45 F.3d 890, 896 (5th Cir.1995) (citation omitted). According to Rule 50(b) of the Federal Rules of Civil Procedure, it is well-settled that a motion for directed verdict" }, { "docid": "14918347", "title": "", "text": "interference claim. See United States v. Pompa, 434 F.3d 800, 806 n. 4 (5th Cir.2005) (citing Fed. R.App. P. 28(a)(9)(A); United Paperworkers Int’l Union AFL-CIO v. Champion Int’l Corp., 908 F.2d 1252, 1255 (5th Cir.1990)) (“Any issue not raised in an appellant’s opening brief is deemed waived.”). II. Standards of Review A. Summary Judgment Standard We review a grant of summary judgment de novo, applying the same standard as the district court. Vaughn v. Woodforest Bank, 665 F.3d 632, 635 (5th Cir.2011) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 308 (5th Cir.2004)). Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). A genuine dispute as to a material fact exists when, after considering the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, a court determines that the evidence is such that a reasonable jury could return a verdict for the party opposing the motion. LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir.2007) (citations omitted). A court considering a motion for summary judgment must consider all facts and evidence in the light most favorable to the nonmoving party. Id. (citing United Fire & Cas. Co. v. Hix-son Bros., Inc., 453 F.3d 283, 285 (5th Cir.2006)). Moreover, a court must draw all reasonable inferences in favor of the nonmoving party and may not make «.'edibility determinations or weigh the evidence. Vaughn, 665 F.3d at 635 (citing Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir.2002)). In addition, a court “must disregard all evidence favorable to the moving party that the jury is not required to believe.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citation omitted). B. Family and Medical Leave Act and Mixed-Motive Framework The FMLA entitles employees to take reasonable leave for medical reasons. 29 U.S.C. § 2601(b)(2) (2006). Additionally, the act" }, { "docid": "2261453", "title": "", "text": "of law, applying the same legal standard used by the district court. Id. (citing Ford, 230 F.3d at 830; Brown v. Bryan County, Okla., 219 F.3d 450, 456 (5th Cir.2000), cert. denied, 532 U.S. 1007, 121 S.Ct. 1734, 149 L.Ed.2d 658 (2001)). “Although our review is de novo, ... our standard of review with respect to a jury verdict is especially deferential.” Flowers, 247 F.3d at 235 (internal quotations omitted) (quoting Brown, 219 F.3d at 456). Therefore, judgment as a matter of law should only be granted if “the facts and inferences point so strongly and overwhelmingly in the movant’s favor that reasonable jurors could not reach a contrary conclusion.” Id. (internal quotations omitted) (quoting Omnitech Int’l, Inc. v. Clorox Co., 11 F.3d 1316, 1322 (5th Cir.1994)). Under Rule 50, “judgment as a matter of law is proper after a party has been fully heard by the jury on a given issue, and there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue.” Id. (internal quotations omitted) (quoting Ford, 230 F.3d at 830). Moreover, in entertaining a Rule 50 mo tion, the court “must review all of the evidence in the record, draw all reasonable inferences in favor of the nonmoving party, and may not make credibility determinations or weigh the evidence.” Ellis v. Weasler Eng’g Inc., 258 F.3d 326, 337 (5th Cir.2001) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Id. (internal quotations omitted) (quoting Reeves, 530 U.S. at 150-51, 120 S.Ct. 2097 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986))). In reviewing the record as a whole, the court “must disregard all evidence favorable to the moving party that the jury is not required to believe.” Id. (citing Reeves, 530 U.S. at 151, 120 S.Ct. 2097 (citing 9A Charles A. Wright & Arthur" } ]

[ { "docid": "1096324", "title": "", "text": "action is based.... 28 U.S.C. § 2412(d)(1)(A), (2)(D). In Stillwell v. Brown, 6 Vet.App. 291, 302 (1994), this Court established the following standard to determine the “substantial justification” issue: [T]he VA must demonstrate the reasonableness, in law and fact, of the position of the VA in a matter before the Court, and of the action or failure to act by the VA in a matter before the VA, based upon the totality of the circumstances, including merits, conduct, reasons given, and consistency with judicial precedent and VA policy with respect to such position, and action or failure to act, as reflected in the record on appeal and the filings of the parties before the Court. The Court also adopted the following “reasonableness” test: (1) [Reasonableness is determined by the totality of circumstances, and not by any single-factor approach; (2) reasonableness “turns on what support in law and fact the government offered in defending its ease, and ... the merits of the agency decision constitute only one factor in evaluating the justification for the government’s litigating position in court,” Essex [Electro Engineers, Inc. v. United States, 757 F.2d 247, 253 (Fed.Cir.1985) ] (citation omitted); (3) whether the government “drag[ged] its feet,” or “cooperated in speedily resolving the litigation,” id.; and (4) whether the government “departed from established policy in such a way as to single out a particular private party,” id. at 254 (citation omitted). Ibid. A. Administrative Position To determine whether the Secretary’s position was “reasonable” during the administrative proceedings, the Court looks to the relevant, determinative circumstances; here those circumstances are the state of the law concerning the BVA’s treatment of the evidence before it. The BVA decision predated all of this Court’s opinions relied upon by the appellant to support his assertion that the Secretary’s position lacked substantial justification. Therefore the issue becomes whether the BVA’s treatment of the evidence in the appellant’s case was reasonable under the statutes and regulations existing in 1990. The Secretary argues that prior to the Collier decision, “the BVA recognized the significant differences between the relevant Social Security statute and regulation and" } ]

[ { "docid": "1069806", "title": "", "text": "a bearing upon the reasonableness of the litigation position of the VA, and of the action or inaction by the VA at the administrative level. One is the evolution of VA benefits law since the creation of this Court that has often resulted in new, different, or more stringent requirements for adjudication. The second is that some cases before this Court are ones of first impression involving good faith arguments of the government that are eventually rejected by the Court. 6 Vet.App. at 302-03. B. Looking, as we must under Stillwell, to the “totality of the circumstances” to determine whether the position of the United States was substantially justified, we conclude that the catalyst for the remand was the change of law brought about by Thurber. Prior to Thurber, it was standard practice for the BVA to rely on medical treatises in their decisions without notifying the claimant in advance of its intention to do so, a practice which certain decisions of this Court appear to have endorsed. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (“[T]he BVA is always free to supplement the record by ... citing recognized medical treatises in its decisions that clearly support its ultimate conclusions.”); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990) (holding that in fulfilling the requirement that a BVA decision provide “reasons or bases” for its conclusion, the BVA may “include relevant portions of medical treatises and journals”). Thus, the Board here acted “consistently] with judicial precedent and VA policy.” Stillwell, supra. In addition, the joint motion was filed on July 23, 1993, a little more than two months after Thurber was decided, and it is evident from the appellant’s fee application that the negotiation of the joint motion began in June 1993. EAJA Application at 5. Thus, the Court concludes that the Secretary did not “drag its feet” in negotiating the joint motion for remand with the appellant once the Thurber ease was decided. See Secretary’s Response at 5-6; Essex Electro, 757 F.2d at 253 (stating that, when deciding whether the government was substantially justified in a particular case, one" }, { "docid": "18551080", "title": "", "text": "was ‘reasonable’ during the litigation proceedings, the Court looks to the circumstances surrounding the resolution of the dispute.” Dillon, 8 Vet.App. at 166. The parties’ October 4, 1995, joint motion for remand came within six months after Reiber was decided and within two months after the appellant filed his August 14, 1995, brief and prior to the Secretary’s filing his brief. See Dillon, 8 Vet.App. at 168 (Secretary’s litigation position reasonable where joint motion filed three months after appellant filed brief and Secretary had not yet filed brief); Olney, 7 Vet.App. at 162 (VA’s litigation position substantially justified where joint motion to remand filed little more than two months after Court opinion changing law and was catalyst for remand). Reviewing the itemized statement of fees incurred, it is apparent that the negotiation of the joint motion began prior to or on September 26, 1995 (Declaration of Valerie L. Hughes at 3), and that the Secretary had “requested that [the appellant] join in a motion to remand the case to the Board” (Suppl. Applic. at 1), thereby implying that the Secretary had initiated the remand. See Stillwell, 6 Vet.App. at 304 (citing fact that VA had “initiated negotiations with appellant to remand the matter here immediately following the issuance of [the controlling opinion]” as factor supporting finding of substantial justification); see also Essex Electro Engineers, 757 F.2d at 253 (Federal Circuit specified that, when deciding whether government was substantially justified in particular case, one factor court should consider is whether government “drag[ged] its feet ... [or whether it] cooperated in speedily resolving the litigation”). Accordingly, the Court concludes that the Secretary did not “drag his feet” during the litigation portion of the appeal and thus his position was substantially justified. See Olney, 7 Vet.App. at 162-63 (citing Essex Electro, 757 F.2d at 253); Stillwell, supra. B. Special Circumstances Because the Court holds that the Secretary was substantially justified in both his administrative and litigation positions, the issue whether special circumstances exist need not be decided; however, the Court notes that, under Doria v. Brown, the Secretary has not presented a situation" }, { "docid": "1079251", "title": "", "text": "and consistency with judicial precedent and VA policy with respect to such position, and action or failure to act, as reflected in the record on appeal and the filings of the parties before the Court. [Citations omitted]. We also adopted the Federal Circuit’s “reasonableness” test, which the Stillwell Court summarized as follows: (1) [Reasonableness is determined by the totality of circumstances, and not by any single-factor approach; (2) reasonableness “turns on what support in law and fact the government offered in defending its case, and ... the merits of the agency decision constitute only one factor in evaluating the justification for the government’s litigating position in court,” Essex [Electro Engineers, Inc. v. United States, 757 F.2d 247, 253 (Fed.Cir.1985) ] (citation omitted); (3) whether the government “drag[ged] its feet,” or “cooperated in speedily resolving the litigation,” id.; and (4) whether the government “departed from established policy in such a way as to single out a particular private party,” id. at 254 (citation omitted). Stillwell at 302; see also Olney v. Brown, 7 Vet.App. 160 (1994); Elcyzyn, supra. The Secretary argues that his position during the litigation of the case before this Court was “substantially justified” because (1) both parties failed to recognize the significance of the Thurber case in light of the BVA decision, and (2) since the Secretary filed his brief on July 14, 1993, only 60 days after the Thurber decision, his failure to apply the Thurber rule does not result in the conclusion that his litigation position was not “substantially justified.” Response at 10-11. The appellant argues that the “Board’s failure to advise the claimant of the texts used to evaluate his claim, nor to afford him reasonable opportunity to controvert same was not substantially justified.” App. at 2. The Secretary has a duty to inform this Court of the facts and the law applicable in each appeal before this forum. As was stated in MacWhorter v. Derwinski, “counsel has an ethical obligation to correctly advise the Court of the facts and the law.” 2 Vet.App. 133, 135 (1992) (citing Model Rules of PROFESSIONAL CONDUCT FOR FEDERAL" }, { "docid": "1148412", "title": "", "text": "the government “departed from established policy in such a way as to single out a particular private party,” id. at 254 (citation omitted). Ibid. To determine whether the Secretary’s position was “reasonable” during the administrative proceedings, the Court looks to the relevant, determinative circumstances; here those circumstances are the state of the law concerning the BVA’s use of medical advisor evidence. The BVA decided this case before the Court decided Thurber and Austin. Prior to Thurber and Austin, it was standard practice for the BVA to rely on medical advisors in their decisions without notifying the claimant in advance of its intention. Certain pre-Thurber decisions of this Court appear to have endorsed such a practice. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (“If the medical evidence of record is insufficient, or, in the opinion of the BVA, of doubtful weight or credibility, the BVA is always free to supplement the record by seeking an advisory opinion_”); Mur phy v. Derwinski, 1 Vet.App. 78, 81 (1990) (holding that “BVA decisions must include the ‘reasons or bases’ for medical conclusions, even those opined by a BVA physician but not finding that the appellant must be provided notice and an opportunity to rebut such an opinion prior to the Board’s decision.); see also Olney v. Brown, 7 Vet.App. 160, 162 (1994). The Board’s reliance upon a VA medical advisor’s opinion, without providing the appellant with notice or an opportunity to respond, was not unreasonable given the “totality of the circumstances,” that in the state of the law on this issue at the time of the Board’s decision. Thus the Secretary’s position at the administrative level was substantially justified, for the Board acted “consistently] with judicial precedent and VA policy.” Olney, supra; Stillwell, supra. To determine whether the Secretary’s position was “reasonable” during the litigation proceedings, the Court looks to the circumstances surrounding the resolution of the dispute. The primary motive for the joint remand motion was the change of law brought about by Thurber and Austin. The Court’s holding in Austin defined the scope of the “reasonable opportunity” duty levied upon" }, { "docid": "1069807", "title": "", "text": "175 (1991) (“[T]he BVA is always free to supplement the record by ... citing recognized medical treatises in its decisions that clearly support its ultimate conclusions.”); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990) (holding that in fulfilling the requirement that a BVA decision provide “reasons or bases” for its conclusion, the BVA may “include relevant portions of medical treatises and journals”). Thus, the Board here acted “consistently] with judicial precedent and VA policy.” Stillwell, supra. In addition, the joint motion was filed on July 23, 1993, a little more than two months after Thurber was decided, and it is evident from the appellant’s fee application that the negotiation of the joint motion began in June 1993. EAJA Application at 5. Thus, the Court concludes that the Secretary did not “drag its feet” in negotiating the joint motion for remand with the appellant once the Thurber ease was decided. See Secretary’s Response at 5-6; Essex Electro, 757 F.2d at 253 (stating that, when deciding whether the government was substantially justified in a particular case, one factor a court should consider is whether the government “drag[ged] its feet ... [or whether it] cooperated in speedily resolving the litigation”). The two arguments advanced by the appellant do not address the change in the law brought about by Thurber. The appellant first argues that the Secretary “failed to comply with the statutory obligation to assist the appellant to develop the facts pertinent to his claim by refusing to investigate and confirm the alleged opinion of his treating physician that his bladder cancer was probably developing while the appellant was still in the active military service.” EAJA Application at 3. While this argument may be of interest, it is premature; it goes to the merits of the appellant’s claim and is more properly raised before the BVA during remand. Our “totality of the. circumstances” review compels the conclusion that it played little, if any, role in the remand. The second basis for the appellant’s claim for fees is that [d]uring negotiation of the joint remand, the Secretary took the unreasonable position that the duty" }, { "docid": "1148410", "title": "", "text": "issues presented by this application are: (d)(1)(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified.... (2) For the purposes of this subsection— (D) “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)(1)(A), (2)(D). In Stillwell v. Brown, 6 Vet.App. 291, 302 (1994), this Court established the following standard to determine the “substantial justification” issue: [T]he VA must demonstrate the reasonableness, in law and fact, of the position of the VA in a matter before the Court, and of the action or failure to act by the VA in a matter before the VA, based upon the totality of the circumstances, including merits, conduct, reasons given, and consistency with judicial precedent and VA policy with respect to such position, and action or failure to act, as reflected in the record on appeal and the filings of the parties before the Court. The Court also adopted the Federal Circuit’s “reasonableness” test, summarizing the guidelines as follows: (1) [Reasonableness is determined by the totality of circumstances, and not by any single-factor approach; (2) reasonableness “turns on what support in law and fact the government offered in defending its case, and ... the merits of the agency decision constitute only one factor in evaluating the justification for the government’s litigating position in court,” Essex [Electro Engineers, Inc. v. United States, 757 F.2d 247, 253 (Fed.Cir.1985) ] (citation omitted); (3) whether the government “dragtged] its feet,” or “cooperated in speedily resolving the litigation,” id.; and (4) whether" }, { "docid": "2712345", "title": "", "text": "this matter was remanded at the request of the parties due to the intervening decision in Thurber [v. Brown, 5 Vet.App. 119 (1993)].” 7 Vet.App. at 163. Although the actual holding does invoke the “totality of the circumstances” standard of Stilhvell, with 20/20 hindsight it becomes apparent that the drift toward the deter mination of substantial justification by reference solely to the basis for the remand had begun. See also Carpenito v. Brown, 7 Vet.App. 534 (1995) (same author, same result: citing Olney, Court refused to consider alleged errors in the BVA’s decision not identified in the parties’ joint motion for remand). In Dillon v. Brown, the speed of the drift from “totality” increased. 8 Vet.App. 165 (1995). There, because the appellant’s, fee application contained allegations of errors which were not listed in the joint motion, the Court classified this as an attempt to “have the Court reach back and, in essence, readjudicate the appeal de novo.” 8 Vet.App. at 168. The Court noted that “the Supreme Court has admonished [that] ‘[a] request for attorney’s fees should not result in a second major litigation.’” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Declining “the appellant’s invitation to conduct such a ‘second major litigation,’ ” the Court held: The fact that the Court’s remand order cited only the Austin [v. Brown, 6 Vet.App. 547 (1994)] error and did not address any other allegations of error establishes that the Austin error alone was “the catalyst for the remand.” Olney [, 7 Vet.App. at 162], Thus, those arguments were not “relevant, determinative circumstances” that would shed light on the reasonableness of the Secretary’s administrative position. See Bowyer [v. Brown, 7 Vet.App. 549 (1995)]; Carpenito, supra. Dillon, 8 Vet.App. at 168; see also Locher v. Brown, 9 Vet.App. 535 (1996). More recently, in Rhodan v. West, the Court again refused to consider arguments not included in the joint motions filed in two consolidated cases but this time went so far as to deem such arguments “irrelevant” to a substantial justification determination. 12 Vet.App. 55, 58 (1998)." }, { "docid": "21385115", "title": "", "text": "failure to act, as reflected in the record on appeal and the filings of the parties before the Court. Stillwell, 6 Vet.App. at 302; see Felton v. Brown, 7 Vet.App. 276, 280 (1994) (in determining whether VA’s position was substantially justified, the Court looks to VA’s position both at the administrative level and before the Court). This Court also adopted the Federal Circuit’s “reasonableness” test, which the Court in Stillwell summarized as follows: (1) [Reasonableness is determined by the totality of circumstances, and not by any single-factor approach; (2) reasonableness “turns on what support in law and fact the government offered in defending its case, and ... the merits of the agency decision constitute only one factor in evaluating the justification for the government’s litigating position in court,” Essex [Electro Engineers, Inc. v. United States, 757 F.2d 247, 253 (Fed.Cir.1985)] (citation omitted); (3) whether the government “dragfged] its feet,” or “cooperated in speedily resolving the litigation,” id.; and (4) whether the government “departed from established policy in such a way as to single out a particular private party,” id. at 254 (citation omitted). Stillwell, 6 Vet.App. at 302; Elcyzyn v. Brown, 7 Vet.App. 170, 175 (1994). The Secretary argues that his position on the merits was reasonable both in fact and in law as established at the time of the adjudication because (1) at the time of the BVA decision issued on October 9, 1990, this Court had not issued any of the case law relied on in the August 16,1993, decision; (2) prior to the October 1990 BVA decision, the Court did not have case law regarding the opinions of treating physicians; and (3) that the “Board properly concluded that the evidence, when viewed objectively, did not reasonably establish that the Appellant had a right shoulder disability that was related to service.” Secretary’s Br. at 12, 13, 16. The burden rests with the government to demonstrate substantial justification to preclude an award of attorney fees. Felton, 7 Vet.App. at 279; Stillwell, 6 Vet.App. at 302. The appellant argues that the Secretary’s position was not substantially justified because the motion" }, { "docid": "18551073", "title": "", "text": "536 [(1995)]. Here, as in Carpenito, upon which the Secretary relies, the “relevant, determinative circumstances” are the state of the law concerning the Board’s reliance on a Board medical adviser’s opinion at the time of the Board’s decision. Dillon, 8 Vet.App. 165, 167-68 (1995). For the reasons that follow, the Court holds that the Secretary’s position in the administrative phase was reasonable and thus substantially justified. Under 38 C.F.R. § 3.310(a), secondary service connection is to be awarded when a disability “is proximately due to or the result of a service-connected disease or injury....” A claim for secondary service connection must, as must all claims, be well grounded. 38 U.S.C. 5107(a); see Jones (Wayne) v. Brown, 7 Vet.App. 134, 136-38 (1994); Proscelle v. Derwinski, 2 Vet.App. 629, 633 (1992). In Reiber, the appellant was seeking service connection for a low back disorder resulting from a fall down stairs that he claimed had been precipitated by his service-connected left ankle’s having given way. The evidence of record included pre-accident medical notes stating that his left ankle was unstable; that he had a severe left-foot drop; that gait analysis had showed that his left foot dragged on the ground and frequently folded under, causing him to trip; and that he had complained of his left ankle having pain and giving way and of his left foot dragging and causing him to trip over it. The medical notes also included his statement that his left ankle had given way, causing him to fall down stairs and injure his back; and a doctor’s notation that the veteran’s herniated disk was related to his fall down stairs. The Court in Reiber concluded: “There are two steps in the appellant’s argument for secondary service connection, and supporting evidence is required for each step. First, the appellant, states that it was his left ankle which caused him to fall and, second, he claims that it was that fall which resulted in his current back condition.” Reiber, 7 Vet. App. at 516. As to the first step, the Court noted that there was evidence in the record that" }, { "docid": "18551072", "title": "", "text": "regarding an incident or event alone — not in conjunction with medical evidence — rendered a claim of secondary service connection well[ ]grounded.” Suppl.-Applic. at 3, n. 1. He argues that his own lay statement that he observed his leg give way and that that caused him to fall provided sufficient evidence to well ground his claim for service connection for his back and arm condition as secondary to his service-connected left leg disability. He asserts that Layno and Harvey had established that medical evidence was not required to support his secondary-service-eonnection claim. Suppl. Applic. at 3-4. The Court’s caselaw indicates that where legal error has occurred, the Secretary will be substantially justified only where his interpretation of the law in question was reasonable. In Dillon v. Brown, the Court stated: To determine whether the Secretary has carried his burden of proof in demonstrating that his position was reasonable during the administrative proceedings, the Court looks to the “relevant, determinative circumstances.” Bowyer v. Brown, 7 Vet.App. 549, 552 (1995); Carpenito [v. Brown], 7 Vet.App. [534,] 536 [(1995)]. Here, as in Carpenito, upon which the Secretary relies, the “relevant, determinative circumstances” are the state of the law concerning the Board’s reliance on a Board medical adviser’s opinion at the time of the Board’s decision. Dillon, 8 Vet.App. 165, 167-68 (1995). For the reasons that follow, the Court holds that the Secretary’s position in the administrative phase was reasonable and thus substantially justified. Under 38 C.F.R. § 3.310(a), secondary service connection is to be awarded when a disability “is proximately due to or the result of a service-connected disease or injury....” A claim for secondary service connection must, as must all claims, be well grounded. 38 U.S.C. 5107(a); see Jones (Wayne) v. Brown, 7 Vet.App. 134, 136-38 (1994); Proscelle v. Derwinski, 2 Vet.App. 629, 633 (1992). In Reiber, the appellant was seeking service connection for a low back disorder resulting from a fall down stairs that he claimed had been precipitated by his service-connected left ankle’s having given way. The evidence of record included pre-accident medical notes stating that his left ankle" }, { "docid": "18551081", "title": "", "text": "thereby implying that the Secretary had initiated the remand. See Stillwell, 6 Vet.App. at 304 (citing fact that VA had “initiated negotiations with appellant to remand the matter here immediately following the issuance of [the controlling opinion]” as factor supporting finding of substantial justification); see also Essex Electro Engineers, 757 F.2d at 253 (Federal Circuit specified that, when deciding whether government was substantially justified in particular case, one factor court should consider is whether government “drag[ged] its feet ... [or whether it] cooperated in speedily resolving the litigation”). Accordingly, the Court concludes that the Secretary did not “drag his feet” during the litigation portion of the appeal and thus his position was substantially justified. See Olney, 7 Vet.App. at 162-63 (citing Essex Electro, 757 F.2d at 253); Stillwell, supra. B. Special Circumstances Because the Court holds that the Secretary was substantially justified in both his administrative and litigation positions, the issue whether special circumstances exist need not be decided; however, the Court notes that, under Doria v. Brown, the Secretary has not presented a situation for application of this special-circumstances exception because he presents no argument that equitable circumstances or a novel legal issue were involved here. Doria, 8 Vet.App. 157, 162-63 (1995). In Doria, this Court concluded that, although “special circumstances” were not defined in the EAJA, the legislative history “recognized two distinct categories of special circumstances: First, situations where the government proffered novel but credible extensions and interpretations of the law; and second, situations ‘where equitable considerations dictate an award should not be made’”; and that “equitable considerations” meant “a prevailing party’s unclean hands.” Doria, 8 Vet.App. at 162 (quoting H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11 (1980), reprinted in 1980 U.S.C.C.A.N. 4953, 4984, 4990); see Brinker v. Guiffrida, 798 F.2d 661, 667 (3d Cir.1986); Oguachuba v. INS, 706 F.2d 93, 98-99 (2d Cir.1983) (finding EAJA special circumstances and denying award where appellant was “without clean hands” because of “notorious and repeated violations of United States immigration law”). The Secretary here does not assert that the appellant has unclean hands — indeed, the Secretary does not claim" }, { "docid": "21385114", "title": "", "text": "the Secretary does not contest the appellant’s status as a “prevailing party,” and we find that the appellant in fact and in law is a “prevailing party” under 28 U.S.C. § 2412(d)(1)(A). See Stillwell v. Brown, 6 Vet.App. 291, 300-01 (1994), appeal dismissed for lack of jurisdiction, 46 F.3d 1111 (1995). The Secretary also does not assert “special circumstances” as defined by 28 U.S.C. § 2412(d)(1)(A) which would make an attorney fees award unjust. Thus, the only predicate issue in dispute is whether the Secretary’s position was substantially justified. A. Substantial Justification This Court has established the following standard for determining whether the government’s position was substantially justified: [T]he VA must demonstrate the reasonableness, in law and fact, of the position of the VA in a matter before the Court, and of the action or failure to act by the VA in a matter before the VA, based upon the totality of the circumstances, including merits, conduct, reasons given, and consistency with judicial precedent and VA policy with respect to such position, and action or failure to act, as reflected in the record on appeal and the filings of the parties before the Court. Stillwell, 6 Vet.App. at 302; see Felton v. Brown, 7 Vet.App. 276, 280 (1994) (in determining whether VA’s position was substantially justified, the Court looks to VA’s position both at the administrative level and before the Court). This Court also adopted the Federal Circuit’s “reasonableness” test, which the Court in Stillwell summarized as follows: (1) [Reasonableness is determined by the totality of circumstances, and not by any single-factor approach; (2) reasonableness “turns on what support in law and fact the government offered in defending its case, and ... the merits of the agency decision constitute only one factor in evaluating the justification for the government’s litigating position in court,” Essex [Electro Engineers, Inc. v. United States, 757 F.2d 247, 253 (Fed.Cir.1985)] (citation omitted); (3) whether the government “dragfged] its feet,” or “cooperated in speedily resolving the litigation,” id.; and (4) whether the government “departed from established policy in such a way as to single out a" }, { "docid": "1110909", "title": "", "text": "“turns on what support in law and fact the government offered in defending its case, and ... the merits of the agency decision constitute only one factor in evaluating the justification for the government’s litigating position in court,” Essex [Electro Engineers, Inc. v. United States, 757 F.2d 247, 253 (Fed.Cir.1985) ] (citation omitted); (3) whether the government “dragfged] its feet,” or “cooperated in speedily resolving the litigation,” id.; and (4) whether the government “departed from established policy in such a way as to single out a particular private party,” id. at 254 (citation omitted). Stillwell at 302. 1. Position of the Parties The Secretary argues that his positions on the merits were reasonable both in fact and in law as established at the time of the adjudication because the BVA relied on the then-current statutory and regulatory provisions regarding both the earlier effective date and the permanency issues. Further, when the BVA issued its decision in July 1991, there was no substantive case law concerning CUE, and the statutory and regulatory guidance concerning the effective dates of veterans’ claims was clear, as was the regulatory guidance concerning the permanent nature of disabilities. Response at 9. The appellant argues that, because the BVA failed to develop and adjudicate the appellant’s claim of CUE in 1983, the Secretary’s position did not possess a reasonable basis in both fact and law and thus was not substantially justified. Br. at 4. Next, the appellant argues that in rejecting his entitlement to a permanent total evaluation for his service-connected PTSD on the basis of its own unsubstantiated medical conclusions without providing any independent medical basis, the Board failed to follow the correct legal standards and this Court’s controlling precedents. Thus, the appellant concludes, the Secretary’s attempt to justify this unjustifiable position before this Court was not substantially justified. Br. at 4. 2. The Position of the United States on the Issue of “Clear and Unmistakable Error” was Substantially Justiñed In the case on the merits, the Secretary had argued against the appellant’s CUE allegations by stating that [i]t is notable that the BVA reconsideration decision" }, { "docid": "18551071", "title": "", "text": "provided under Reiber, supra”. He contends that the Reiber decision represented a change of law and was issued after the Board’s decision. Response at 8-9. Relying on Grivois v. Brown, 6 Vet.App. 136 (1994), and Grottveit v. Brown, 5 Vet.App. 91, 93 (1993), he argues that VA’s practice prior to Reiber was to deny secondary-service-con- neetion claims as not well grounded when there was a lack of medical evidence supporting the claimed connection between the two disabilities. In response, the appellant contends that Reiber reiterated an old rule, specifically, that a lay witness may provide sufficient support to render a secondary-service-connection claim well grounded. Supplemental (Suppl.) Application (Applic.) at 2. He asserts that this Court’s opinion in Layno v. Brown, 6 Vet.App. 465 (1994), which was decided in June 1994, held that a lay witness can testify as to symptoms or facts he observed in support of his claim for service connection for asthma. He relies principally on Harvey, 6 Vet.App. at 393, in which he contends that the Court found that the “layperson’s testimony regarding an incident or event alone — not in conjunction with medical evidence — rendered a claim of secondary service connection well[ ]grounded.” Suppl.-Applic. at 3, n. 1. He argues that his own lay statement that he observed his leg give way and that that caused him to fall provided sufficient evidence to well ground his claim for service connection for his back and arm condition as secondary to his service-connected left leg disability. He asserts that Layno and Harvey had established that medical evidence was not required to support his secondary-service-eonnection claim. Suppl. Applic. at 3-4. The Court’s caselaw indicates that where legal error has occurred, the Secretary will be substantially justified only where his interpretation of the law in question was reasonable. In Dillon v. Brown, the Court stated: To determine whether the Secretary has carried his burden of proof in demonstrating that his position was reasonable during the administrative proceedings, the Court looks to the “relevant, determinative circumstances.” Bowyer v. Brown, 7 Vet.App. 549, 552 (1995); Carpenito [v. Brown], 7 Vet.App. [534,]" }, { "docid": "2712348", "title": "", "text": "litigation stages, the Court looks, respectively, to the “ ‘relevant, determinative circumstances’ and to the ‘circumstances surrounding the resolution of the dispute.’” Stephens [, 12 Vet.App. at 118] (quoting and citing Dillon [, 8 Vet.App. at 167-68], Bowyer [, 7 Vet.App. at 552-53], and Carpenito [, 7 Vet.App. at 536-37]). Jackson, 12 Vet.App. at 426. Although Jackson’s repetition of the word “focus” would not appear to preclude consideration of other factors as seemingly mandated by the “totality of the circumstances” test of Stilliuell, additional language appears to have shut that door and limited our review to such material: When the Court’s remand order provides only one basis for remand and does “not address any other allegations of error”, the appellant’s additional allegations of BVA error cannot be considered to be “ ‘relevant determinative circumstances’ that would shed light on the reasonableness of the Secretary’s ... position”, ... but, rather, constitute an impermissible attempt to conduct a “second major litigation” of the merits. Id. (citations omitted) (emphasis added); see also, e.g., Wisner v. West, 12 Vet.App. 330, 333 (1999) (“It is clear from the Court’s October 2,1998, remand order that the Court relied solely upon the Hodge [v. West, 155 F.3d 1356, 1361-64 (Fed.Cir.1998)] issue. Thus, the Board’s not applying those regulations is irrelevant for EAJA ‘substantial justification’ purposes because that failure was in no way a basis for the Court’s remand of the case.... Accordingly, the Court cannot find that the Secretary’s position at the administrative level in these cases was not substantially justified.”). Thus, we have developed a body of ease law holding that, at least in the instance of a remand upon a joint motion, the Court will determine whether the Secretary’s position was substantially justified only by considering arguments and issues expressly addressed by the parties in their joint submission and/or in the remand order of the Court. A number of our decisions have cited the need to avoid “a second major litigation” as justification for our refusal to consider additional allegations of error and to go beyond the reason for remand, the joint submissions of the" }, { "docid": "1110908", "title": "", "text": "lacks substantial justification, like the determination that a claimant is a ‘prevailing party,’ thus operates as a one-time threshold for fee eligibility.” Id. at 160, 110 S.Ct. at 2319. In Stillwell, 6 Vet.App. at 302, this Court reviewed all of the pertinent decisions on the issue of “substantial justification” and established the following standard: ... the VA must demonstrate the reasonableness, in law and fact, of the position of the VA in a matter before the Court, and of the action or failure to act by the VA in a matter before the VA, based upon the totality of the circumstances, including merits, conduct, reasons given, and consistency with judicial precedent and VA policy with respect to such position, and action or failure to act, as reflected in the record on appeal and the filings of the parties before the Court. [Citations omitted]. We also adopted the Federal Circuit’s “reasonableness” test which the Stillwell Court summarized as follows: (1) [Reasonableness is determined by the totality of circumstances, and not by any single-factor approach; (2) reasonableness “turns on what support in law and fact the government offered in defending its case, and ... the merits of the agency decision constitute only one factor in evaluating the justification for the government’s litigating position in court,” Essex [Electro Engineers, Inc. v. United States, 757 F.2d 247, 253 (Fed.Cir.1985) ] (citation omitted); (3) whether the government “dragfged] its feet,” or “cooperated in speedily resolving the litigation,” id.; and (4) whether the government “departed from established policy in such a way as to single out a particular private party,” id. at 254 (citation omitted). Stillwell at 302. 1. Position of the Parties The Secretary argues that his positions on the merits were reasonable both in fact and in law as established at the time of the adjudication because the BVA relied on the then-current statutory and regulatory provisions regarding both the earlier effective date and the permanency issues. Further, when the BVA issued its decision in July 1991, there was no substantive case law concerning CUE, and the statutory and regulatory guidance concerning the effective" }, { "docid": "1148411", "title": "", "text": "of the VA in a matter before the Court, and of the action or failure to act by the VA in a matter before the VA, based upon the totality of the circumstances, including merits, conduct, reasons given, and consistency with judicial precedent and VA policy with respect to such position, and action or failure to act, as reflected in the record on appeal and the filings of the parties before the Court. The Court also adopted the Federal Circuit’s “reasonableness” test, summarizing the guidelines as follows: (1) [Reasonableness is determined by the totality of circumstances, and not by any single-factor approach; (2) reasonableness “turns on what support in law and fact the government offered in defending its case, and ... the merits of the agency decision constitute only one factor in evaluating the justification for the government’s litigating position in court,” Essex [Electro Engineers, Inc. v. United States, 757 F.2d 247, 253 (Fed.Cir.1985) ] (citation omitted); (3) whether the government “dragtged] its feet,” or “cooperated in speedily resolving the litigation,” id.; and (4) whether the government “departed from established policy in such a way as to single out a particular private party,” id. at 254 (citation omitted). Ibid. To determine whether the Secretary’s position was “reasonable” during the administrative proceedings, the Court looks to the relevant, determinative circumstances; here those circumstances are the state of the law concerning the BVA’s use of medical advisor evidence. The BVA decided this case before the Court decided Thurber and Austin. Prior to Thurber and Austin, it was standard practice for the BVA to rely on medical advisors in their decisions without notifying the claimant in advance of its intention. Certain pre-Thurber decisions of this Court appear to have endorsed such a practice. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (“If the medical evidence of record is insufficient, or, in the opinion of the BVA, of doubtful weight or credibility, the BVA is always free to supplement the record by seeking an advisory opinion_”); Mur phy v. Derwinski, 1 Vet.App. 78, 81 (1990) (holding that “BVA decisions must include the ‘reasons" }, { "docid": "1148413", "title": "", "text": "or bases’ for medical conclusions, even those opined by a BVA physician but not finding that the appellant must be provided notice and an opportunity to rebut such an opinion prior to the Board’s decision.); see also Olney v. Brown, 7 Vet.App. 160, 162 (1994). The Board’s reliance upon a VA medical advisor’s opinion, without providing the appellant with notice or an opportunity to respond, was not unreasonable given the “totality of the circumstances,” that in the state of the law on this issue at the time of the Board’s decision. Thus the Secretary’s position at the administrative level was substantially justified, for the Board acted “consistently] with judicial precedent and VA policy.” Olney, supra; Stillwell, supra. To determine whether the Secretary’s position was “reasonable” during the litigation proceedings, the Court looks to the circumstances surrounding the resolution of the dispute. The primary motive for the joint remand motion was the change of law brought about by Thurber and Austin. The Court’s holding in Austin defined the scope of the “reasonable opportunity” duty levied upon the Secretary under Thurber. When applied to this ease, the conclusion that the appéllant had been denied a “reasonable opportunity” to respond to Dr. Anderson’s opinion resulted. In only a little more than two months after the Austin decision, the Secretary participated in a joint remand motion, which was filed on September 26, 1994. Thus, the Secretary did not “drag [his] feet” when he timely negotiated the joint motion to resolve this litigation. Again, given the “totality of the circumstances,” the Secretary’s position at the litigation level was also substantially justified. III. The appellant also argued that the Secretary “failed to comply with the statutory obligation to assist the appellant to develop the facts pertinent to the development of his claim.” EAJA App. at 2. In Olney, 7 Vet.App. at 163, the appellant presented a similar argument, but this Court rejected that proposition by stating: “While this argument may be of interest, it is premature; it goes to the merits of the appellant’s claim and is more properly raised before the BVA during remand. Our" }, { "docid": "1079250", "title": "", "text": "the government unjust. In this case, the Secretary does not contest the appellant’s status as a “prevailing party,” and we find that the appellant in fact and in law is a “prevailing party” under 28 U.S.C. § 2412(d)(1)(A). See Stillwell, 6 Vet. App. at 300-01. The Secretary also does not assert “special circumstances” as defined by 28 U.S.C. § 2412(d)(1)(A) which would make an attorney fees award unjust in this case. Response at 3. The Court also finds that the appellant’s application was timely filed. Thus, the only predicate issue in dispute is whether the Secretary’s position was substantially justified. B. Substantial Justification In Stillwell, 6 Vet.App. at 302, this Court established the following standard for determining if the Secretary’s position was substantially justified: [T]he VA must demonstrate the reasonableness, in law and fact, of the position of the VA in a matter before the Court, and of the action or failure to act by the VA in a matter before the VA, based upon the totality of the circumstances, including merits, conduct, reasons given, and consistency with judicial precedent and VA policy with respect to such position, and action or failure to act, as reflected in the record on appeal and the filings of the parties before the Court. [Citations omitted]. We also adopted the Federal Circuit’s “reasonableness” test, which the Stillwell Court summarized as follows: (1) [Reasonableness is determined by the totality of circumstances, and not by any single-factor approach; (2) reasonableness “turns on what support in law and fact the government offered in defending its case, and ... the merits of the agency decision constitute only one factor in evaluating the justification for the government’s litigating position in court,” Essex [Electro Engineers, Inc. v. United States, 757 F.2d 247, 253 (Fed.Cir.1985) ] (citation omitted); (3) whether the government “drag[ged] its feet,” or “cooperated in speedily resolving the litigation,” id.; and (4) whether the government “departed from established policy in such a way as to single out a particular private party,” id. at 254 (citation omitted). Stillwell at 302; see also Olney v. Brown, 7 Vet.App. 160 (1994);" }, { "docid": "22871817", "title": "", "text": "to a degree that could satisfy a reasonable person. That is no different from the “reasonable basis both in law and fact” formulation adopted by the Ninth Circuit and the vast majority of other Courts of Appeals that have addressed this issue. [Citations omitted]. See also Cook, supra (quoting Underwood). The Supreme Court also noted that “a position can be justified even though it is not correct, and we believe it can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.” Underwood, 487 U.S. at 566 n. 2, 108 S.Ct. at 2550 n. 2. Factors relevant to the determination of reasonableness were also enunciated by the Federal Circuit in Essex, supra, prior to Underwood. (Although not directly relevant here, Underwood implicitly overruled the holding of the Federal Circuit in Essex regarding the standard of appellate review governing the determination of substantial justification.) Although the factors pertained only to the government’s litigation position and not to the government’s position advanced at the administrative level since the Essex case predated the 1985 amendment, they nevertheless provide guidance in an area described as “quintessentially discretionary in nature.” Chiu v. United States, 948 F.2d 711, 715 n. 4 (Fed.Cir.1991). The Federal Circuit in Essex set forth the following guidelines: (1) reasonableness is determined by the totality of circumstances, and not by any single-factor approach; (2) reasonableness “turns on what support in law and fact the government offered in defending its case, and ... the merits of the agency decision constitute only one factor in evaluating the justification for the government’s litigating position in court,” Essex, 757 F.2d at 253 (citation omitted); (3) whether the government “dragfged] its feet,” or “cooperated in speedily resolving the litigation,” id.; and (4) whether the government “departed from established policy in such a way as to single out a particular private party,” id. at 254 (citation omitted). By merging the statutory and Underwoodr-Gavette-Essex language for purposes of developing the most current framework within which to determine “substantial justification” with respect" } ]

[ { "docid": "22930854", "title": "", "text": "a single pattern of racketeering activity, because each was committed in furtherance of the Scarfo enterprise. There was no Rule 8(b) misjoinder of appellants because, consistent with the law of joinder in RICO cases, all the criminal acts charged against each defendant, including the murder conspiracy implicating Idone, were undertaken in furtherance of a single, commonly charged racketeering enterprise and conspiracy. IV. Eufrasio and Iacona’s Rule H Severance Motions Eufrasio and Iacona claim the district court erred by denying the pre-trial severance motions they made under Rule 14 of the Federal Rules of Criminal Procedure. Eufrasio and Iacona sought to sever the murder conspiracy count charged against Idone. Rule 14 permits severance of proper Rule 8(b) joinder: If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. (Emphasis added.) The Rule places the burden of showing prejudice from the join-der on the defendant seeking severance. United States v. De Peri, 778 F.2d 963, 983 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986). Appellate review of orders denying Rule 14 severance is potentially twofold. U.S. v. Sandini, 888 F.2d 300, 305-306 (3d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1831, 108 L.Ed.2d 959 (1990). Since denial of severance is committed to the sound discretion of the trial judge, see e.g., United States v. Reicherter, 647 F.2d 397, 400 (3d Cir.1981), we first determine from the record as it was when the severance motions were made, what trial developments were then reasonably foreseeable, and in that light decide whether the court abused its discretion denying severance. Sandini, 888 F.2d at 305. While doing so, we keep in mind that a trial court should balance the public interest in joint trials against the possibility of prejudice inherent in the joinder of defendants. De Peri, 778 F.2d at 984. Ordinarily, defendants jointly indicted" } ]

[ { "docid": "22211758", "title": "", "text": "935 F.2d at 568. Ordinarily, judicial and prose-cutorial resources will be conserved by a joint trial. However, in this case the district court determined that a joint trial of all defendants would be “potentially unwieldy, unmanageable, and confusing.” S.App. at 12. The court found that there would be a “significant danger of ‘spillover’ of evidence from the government’s case against the major participants in the conspiracy to the minor ones,” and that there would be no conservation of judicial or prosecutorial resources. S.App. at 12-13. In view of these findings, we conclude that the court’s decision to sever the co-defendants was not an abuse of discretion. Cobb next argues that if the defendants were not to be tried en masse, his motion for a separate trial should have been granted. Inasmuch as this is a discretionary decision, a defendant has the heavy burden to “demonstrate clear and substantial prejudice resulting in a manifestly unfair trial.” Eufrasio, 935 F.2d at 568 (quotation and emphasis omitted). The Supreme Court has recently held that “a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a rehable judgment about guilt or innocence.” Zafiro v. United States, — U.S. -, -, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993), see also United States v. Console, 13 F.3d 641, 655-56 (3d Cir.1993). The district court in this case concluded before trial that severance of Cobb from the six co-defendants was not required because Cobb had failed to show specifically how joinder would be prejudicial. The record in this case demonstrates that he suffered no such prejudice. Most of the evidence presented at the trial concerned drug transactions that occurred while Cobb was an active participant in the JBM. Although Cobb argues that because he was denominated an “enforcer” much of the testimony at trial relating to drug sales and distribution prejudiced him, we note that evidence at trial indicated that Cobb was a courier and a supplier as" }, { "docid": "51526", "title": "", "text": "113 S.Ct. 1388, 122 L.Ed.2d 763 (1993); United States v. Boyd, 595 F.2d 120, 125 (3d Cir.1978). Rule 14 authorizes a trial court to sever counts or defendants where, despite an indictment’s technical compliance with Rule 8, joinder would result in a “manifestly unfair trial.” Vastola, 670 F.Supp. at 1261 (citing United States v. Reicherter, 647 F.2d 397, 400 (3d Cir.1981)). In Zafiro, the Supreme Court stated: We believe that, when defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury fi\"om making a reliable judgment about guilt or innocence. Zafiro, 506 U.S. at 539, 113 S.Ct. at 938. Defendants bear a “heavy burden” when moving for severance under Rule 14. See Eufrasio, 935 F.2d at 568; Sandini, 888 F.2d at 305; United States v. Friedman, 854 F.2d 535, 563 (2d Cir.1988), cert. denied, 490 U.S. 1004, 109 S.Ct. 1637, 104 L.Ed.2d 153 (1989); United States v. De Peri, 778 F.2d 963, 983 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986); United States v. DiPasquale, 740 F.2d 1282, 1293 (3d Cir.1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1226, 84 L.Ed.2d 364 (1985). Mere allegations of prejudice are insufficient to meet this burden. Defendants must “pinpoint ‘clear and substantial prejudice’ resulting in an unfair trial.” McGlory, 968 F.2d at 340 (quoting Eufrasio, 935 F.2d at 568); see also Gorecki, 813 F.2d at 43; United States v. Wright-Barker, 784 F.2d 161, 175 (3d Cir.1986). Defendants are not entitled to severance “merely because they may have a better chance of acquittal in separate trials.” Zafiro, 506 U.S. at 540, 113 S.Ct. at 938; see McGlory, 968 F.2d at 340. Frequently, where there is a risk of prejudice, it may be cured by proper jury instructions. Zafiro, 506 U.S. at 540, 113 S.Ct. at 939. “ ‘[JJuries are presumed to follow their instructions.’ ” Id. (quoting Richardson v. Marsh, 481 U.S. 200, 211," }, { "docid": "3727775", "title": "", "text": "case as a whole is so complex or confusing, that a reasonable jury would be unable to ‘compartmentalize’ the evidence as to each [count] and would thus be unable to make an individualized determination of the prejudiced defendant’s innocence or guilt.” United States v. Zolp, 659 F.Supp. 692, 701 (D.N.J.1987); see also McGlory, 968 F.2d at 340. In determining whether to sever a trial, the “court should balance the public interest in joint trials against the possibility of prejudice inherent in the joinder of defendants.” Eufrasio, 935 F.2d at 568 (citing De Peri, 778 F.2d at 984); see also McGlory, 968 F.2d at 340. Joint trials “conserve [public] funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial.” Bruton v. United States, 391 U.S. 123, 134, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968). Moreover, “joint trials generally serve the interests of justice by avoiding inconsistent verdicts and ... [other] advantages which sometimes operate to the defendant’s benefit.” Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176 (1987). Significantly, the “public interest in judicial economy favors joint trials where the same evidence would be presented at separate trials of defendants charged with a single conspiracy.” Eufrasio, 935 F.2d at 568. In support of the request for severance, Bertoli argues the introduction of evidence that the Isaacson Affidavits are false and fraudulent would prejudice the jury against him with respect to the other Counts in the Second Superseding Indictment. But as the Government argues, the Government will introduce the Isaacson Affidavits as part of the evidence in the RICO Counts. Accordingly, joinder of Count Seven will not result in “clear and substantial prejudice” resulting in an unfair trial. Eufrasio, 935 F.2d at 568, 571. Moreover, the trial is projected to last two to four months. To sever Count Seven will require that many of the same witnesses be reassembled and would result in a gross waste of judicial resources, time and effort. The substantial public interest in judicial economy outweighs any prejudice to Bertoli by not severing" }, { "docid": "51518", "title": "", "text": "(“Rule 8”) permits joinder of offenses and defendants. Joinder of offenses and defendants promotes economy of judicial and prosecutorial resources, as well as the public interest in avoiding expensive and duplicative trials. United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 732, 88 L.Ed.2d 814, reh’g denied, 475 U.S. 1104, 106 S.Ct. 1507, 89 L.Ed.2d 907 (1986); United States v. Gorecki, 813 F.2d 40, 42 (3d Cir.1987); United States v. Jackson, 649 F.2d 967, 973 (3d Cir.), cert. denied, 454 U.S. 1034, 102 S.Ct. 574, 70 L.Ed.2d 479 (1981). “There is a preference in the [Fjederal system for joint trials of defendants who are indicted together.” Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993). When distinct offenses have both a logical and temporal relationship, joinder permits the Government to present its evidence in an efficient manner. See United States v. Eisenberg, 773 F.Supp. 662, 696 (D.N.J.1991). Rule 8(b) “provides substantial leeway to prosecutors who would join racketeering defendants in a single trial.” United States v. Eufrasio, 935 F.2d 553, 567 (3d Cir.) cert. denied, 502 U.S. 925, 112 S.Ct. 340, 116 L.Ed.2d 280 (1991). It permits joinder of defendants alleged to have participated in the “same series of acts or transactions constituting an offense or offenses.” Fed. R. Crim.P. 8(b). Acts or transactions have been considered part of the “same series” when they are performed “pursuant to a common scheme or plan.” United States v. Curry, 977 F.2d 1042, 1049 (7th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1357, 122 L.Ed.2d 737 (1993); United States v. Bledsoe, 674 F.2d 647, 656 (8th Cir.) (Although conspiracy need not be alleged, “facts must be alleged which at least suggest the existence of an overall scheme encompassing all the defendants and all the charged offenses.”), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982); Natanel, 938 F.2d at 307 (joinder proper as long as some common activity binds objecting defendant with all other indictees and that common activity encompasses all charged offenses). Similarly, “[w]hen the facts underlying each offense" }, { "docid": "10443970", "title": "", "text": "670 F.Supp. 1244, 1261 (D.N.J.1987) (citing United States v. Somers, 496 F.2d 723, 729 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974)), aff'd in part, rev'd in part, 899 F.2d 211 (3rd Cir.1990). When a number of offenses are joined in one indictment or multiple defendants are jointly charged with a single offense, \"[sjome prejudice almost necessarily results.” Vastola, 670 F.Supp. at 1261 (quoting Cupo v. United States, 359 F.2d 990, 993 (D.C.Cir.1966), cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967)). This level of prejudice, however, is permissible so long as the technical strictures of Rule 8 are met. Thus, Rule 8(b) is generally satisfied if the indictment charges a single conspiracy. United States v. Cole, 717 F.Supp. 309, 317 (E.D.Pa.1989), aff'd, 958 F.2d 365 (3d Cir.1992); United States v. Di Pasquale, 561 F.Supp. 1338, 1347 (E.D.Pa.1983), aff'd, 740 F.2d 1282 (3d Cir.1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1226, 84 L.Ed.2d 364 (1985). Severance under Rule 14 is within the discretion of the trial court. United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir.), cert. denied sub nom, -U.S. -, 112 S.Ct. 340, 116 L.Ed.2d 280 (1991); United States v. Boyd, 595 F.2d 120, 125 (3d Cir.1978). Rule 14 authorizes a trial court to sever counts or defendants where, despite an indictment’s technical compliance with Rule 8, joinder would result in a \"manifestly unfair trial.” Vastóla, 670 F.Supp. at 1261 (citing United States v. Reicherter, 647 F.2d 397, 400 (3d Cir.1981)). A defendant bears a heavy burden when he or she moves for severance under Rule 14. See Eufrasio, 935 F.2d at 568; United States v. Sandini, 888 F.2d 300, 305 (3d Cir.1989), cert. denied, 494 U.S. 1089, 110 S.Ct. 1831, 108 L.Ed.2d 959 (1990); United States v. De Peri, 778 F.2d 963, 983 (3d Cir.1985), cert. denied sub nom., 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 and 476 U.S. 1159, 106 S.Ct. 2277, 90 L.Ed.2d 720 (1986); United States v. Di Pasquale, 740 F.2d 1282, 1293 (3d Cir.1984), cert. denied, 469 U.S. 1228, 105" }, { "docid": "23290846", "title": "", "text": "provides substantial leeway to prosecutors who would join racketeering defendants in a single trial. The rule permits joinder of defendants charged with participating in the same racketeering enterprise or conspiracy, even when different defendants are charged with different acts, so long as indictments indicate all the acts charged against each joined defendant (even separately charged substantive counts) are charged as racketeering predicates or as acts undertaken in furtherance of, or in association with a commonly charged RICO enterprise or conspiracy. United States v. Dickens, 695 F.2d 765, 778-79 (3d Cir.1982), cert. denied, 460 U.S. 1092, 103 S.Ct. 1792 (1983). “[JJoinder ... of a conspiracy count and substantive counts arising out of the conspiracy [is permitted], since the claim of conspiracy provides a common link, and demonstrates the existence of a common scheme or plan.” United States v. Somers, 496 F.2d 723, 729-730 (3d Cir.) (emphasis in Somers, quoting Wright and Miller, Federal Practice and Procedure § 144), cert. denied, 419 U.S. 832, 95 S.Ct. 56 (1974). 935 F.2d at 567. Moreover, we agreed with the view of the Court of Appeals for the Second Circuit announced in United States v. Friedman, 854 F.2d 535 (2nd Cir.1988). There, the court held that a RICO conspiracy charge provides the required link to which we referred in United States v. Somers. Eufrasio, 935 F.2d at 567. After reviewing the indictment in that context, we concluded that the strictures of joinder set forth in Rule 8(b) had not been violated by charging Idone with the murder conspiracy predicate, but not charging Eufrasio and Iacone “because, consistent with the law of joinder in RICO cases, all the criminal acts charged against each defendant, including the murder conspiracy implicating Idone, were undertaken in furtherance of a single, commonly charged racketeering enterprise and conspiracy.” Id. Applying the Eufrasio rationale here, we conclude that the superceding indictment did not improperly join separate, unrelated crimes allegedly committed by Irizarry. Rather, he was charged with a RICO substantive violation and a RICO conspiracy violation, and all of the criminal acts charged against him in the superceding indictment were charged either" }, { "docid": "3727774", "title": "", "text": "Cir.1989), cert. denied, sub nom. Thomson v. United States, 494 U.S. 1089, 110 S.Ct. 1831, 108 L.Ed.2d 959 (1990); United States v. De Peri, 778 F.2d at 983; United States v. Di Pasquale, 740 F.2d 1282, 1293 (3d Cir.1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1226, 84 L.Ed.2d 364 (1985). Mere allegations of prejudice are insufficient to meet this burden. A defendant “must demonstrate ‘clear and substantial prejudice.’ ” Gorecki, 813 F.2d at 43 (quoting Sebetich, 776 F.2d at 427); United States v. Wright-Barker, 784 F.2d 161, 175 (3d Cir.1986). “It is not enough to show that severance would have increased the defendant’s chances of acquittal.” McGlory, 968 F.2d at 340. Prejudice cannot be shown merely because the jury may consider the facts alleged in one count during their considerations of another count. Eufrasio, 935 F.2d at 570-71. The jury can reasonably be expected to confine its considerations of evidence to the proper charges. Id. “[T]he defendant must demonstrate that in light of the evidence to be submitted against him, the evidence in the case as a whole is so complex or confusing, that a reasonable jury would be unable to ‘compartmentalize’ the evidence as to each [count] and would thus be unable to make an individualized determination of the prejudiced defendant’s innocence or guilt.” United States v. Zolp, 659 F.Supp. 692, 701 (D.N.J.1987); see also McGlory, 968 F.2d at 340. In determining whether to sever a trial, the “court should balance the public interest in joint trials against the possibility of prejudice inherent in the joinder of defendants.” Eufrasio, 935 F.2d at 568 (citing De Peri, 778 F.2d at 984); see also McGlory, 968 F.2d at 340. Joint trials “conserve [public] funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial.” Bruton v. United States, 391 U.S. 123, 134, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968). Moreover, “joint trials generally serve the interests of justice by avoiding inconsistent verdicts and ... [other] advantages which sometimes operate to the defendant’s benefit.” Richardson v. Marsh, 481 U.S. 200, 210, 107" }, { "docid": "51527", "title": "", "text": "L.Ed.2d 153 (1989); United States v. De Peri, 778 F.2d 963, 983 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986); United States v. DiPasquale, 740 F.2d 1282, 1293 (3d Cir.1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1226, 84 L.Ed.2d 364 (1985). Mere allegations of prejudice are insufficient to meet this burden. Defendants must “pinpoint ‘clear and substantial prejudice’ resulting in an unfair trial.” McGlory, 968 F.2d at 340 (quoting Eufrasio, 935 F.2d at 568); see also Gorecki, 813 F.2d at 43; United States v. Wright-Barker, 784 F.2d 161, 175 (3d Cir.1986). Defendants are not entitled to severance “merely because they may have a better chance of acquittal in separate trials.” Zafiro, 506 U.S. at 540, 113 S.Ct. at 938; see McGlory, 968 F.2d at 340. Frequently, where there is a risk of prejudice, it may be cured by proper jury instructions. Zafiro, 506 U.S. at 540, 113 S.Ct. at 939. “ ‘[JJuries are presumed to follow their instructions.’ ” Id. (quoting Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987)). Accordingly, the question is “whether the jury can reasonably be expected to compartmentalize the evidence against each defendant.” McGlory, 968 F.2d at 340 (citing Eufrasio, 935 F.2d at 568). As the jury verdicts reflect, the jury was able to and did in fact compartmentalize the evidence and used the evidence as instructed. In the instant action, Giampa, Segarra, Capra and Porco argued severance was proper because a single trial would result in a prejudicial “spillover effect.” Giampa Brief at 12; Segarra Brief at 11; see Capra and Porco Brief at 7. Giampa, Segarra, Capra and Porco argued they would be prejudiced because the jury would be unable to compartmentalize the evidence against them while evidence was presented which implicates their co-defendants. Giampa Brief at 12,15-16; Segarra Brief at 11-12; Capra and Porco Brief at 7. The Government argued severance was inappropriate because the Defendants were involved in a single conspiracy and were employed by or associated with the Lucchese Crime Family; an enterprise which was engaged in" }, { "docid": "23577837", "title": "", "text": "Cir.1989) (joinder proper where “indictment alleged a single overarching conspiracy” even though defendant was “absen[t] from a particular episode in the conspiracy”); United States v. Nerlinger, 862 F.2d 967, 973 (2d Cir.1988) (joinder proper even though defendants’ “respective acts committed in furtherance of the conspiracy occurred during chronologically distinct periods”). Defendants’ argument that they were misjoined under Rule 14 is similarly unpersuasive. As the Supreme Court recently explained, “a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent, the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, — U.S. —, -, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993). The district court in this case concluded that Thornton and Jones were both leaders of the JBM and that severance was inappropriate because the defendants had failed to demonstrate that joinder would be prejudicial. In Eufrasio, we stated that “[t]he public interest in judicial economy favors joint trials where the same evidence would be presented at separate trials of. defendants charged with a single conspiracy.” 935 F.2d at 568. See also Zafiro, — U.S. at -, 113 S.Ct. at 937 (“There is a preference in the federal system for joint trials of defendants who are indicted together.”). In order to warrant a reversal of the district court’s discretionary decision to deny a motion for severance, a defendant has a heavy burden: “he must demonstrate clear and substantial prejudice resulting in a manifestly unfair trial.” Eufrasio, 935 F.2d at 568 (quotation and emphasis omitted). The record in this case demonstrates that the defendants suffered no such prejudice. Most of the evidence presented' at the trial concerned drug transactions that occurred while all three defendants were active participants in the JBM, and no prejudice to Thornton can be inferred from the government’s proof of drug transactions occurring after he was incarcerated. As we stated in Eufrasio, “[prejudice should not be found in a joint trial just because all evidence adduced is not germane" }, { "docid": "22211757", "title": "", "text": "that when that was done he was improperly joined with his six co-defendants. We review the joinder of two or more defendants under Fed.R.Crim.P. 8(b) de novo whereas rulings on a motion for severance under Fed.R.Crim.P. 14 are reviewed for abuse of discretion. See United States v. Eufrasio, 935 F.2d 553, 567-68 (3d Cir.), cert. denied, — U.S. -, 112 S.Ct. 340, 116 L.Ed.2d 280 (1991). Cobb’s claim that all 26 indicted ,co-conspirators should have been tried together is unusual. Frequently, a defendant contends that trial with all his other alleged co-conspirators would be prejudicial. Indeed, that was Cobb’s position in the district court. When the government indicts a large number of defendants on massive conspiracy allegations, it is the responsibility of the district court to consider various measures, including possible severance, that will make the trial manageable and protect the rights of the defendants to individualized consideration. We have stated that a trial court should “balance the public interest in joint trials against the possibility of prejudice inherent in the joinder of defendants.” Eufrasio, 935 F.2d at 568. Ordinarily, judicial and prose-cutorial resources will be conserved by a joint trial. However, in this case the district court determined that a joint trial of all defendants would be “potentially unwieldy, unmanageable, and confusing.” S.App. at 12. The court found that there would be a “significant danger of ‘spillover’ of evidence from the government’s case against the major participants in the conspiracy to the minor ones,” and that there would be no conservation of judicial or prosecutorial resources. S.App. at 12-13. In view of these findings, we conclude that the court’s decision to sever the co-defendants was not an abuse of discretion. Cobb next argues that if the defendants were not to be tried en masse, his motion for a separate trial should have been granted. Inasmuch as this is a discretionary decision, a defendant has the heavy burden to “demonstrate clear and substantial prejudice resulting in a manifestly unfair trial.” Eufrasio, 935 F.2d at 568 (quotation and emphasis omitted). The Supreme Court has recently held that “a district court should" }, { "docid": "20412793", "title": "", "text": "of defendants who are indicted together.” Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Rule 8 of the Federal Rules of Criminal Procedure reflects this liberal joinder policy, allowing the government to advance multiple charges against multiple defendants in a single indictment. United States v. Brown, No. UCR02-146-02, 2002 WL 32739530, at *3 (M.D.Pa. Dec. 17, 2002) (quoting United States v. Bullock, 71 F.3d 171, 174 (5th Cir.1995)) (“Joinder of charges is the rule rather than the exeeption[,] and Rule 8 is construed liberally in favor of initial joinder.”). Rule 8(a) permits joinder of several counts against a single defendant if the counts “are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Fed.R.Crim.P. 8(a). Similarly, Rule 8(b) authorizes joinder of multiple defendants who “are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.” Fed.R.Crim.P. 8(b). Rule 8(b) provides the applicable standard when one individual appearing in a multi-defendant indictment challenges the joinder of the charges against him or her. United States v. Irizarry, 341 F.3d 273, 287 (3d Cir.2003). The government may join multiple offenses in a single indictment if they “arise out of a common series of acts or transactions.” United States v. Brown, No.Crim.A. 07-0296, 2008 WL 161146, at *4 (E.D.Pa. Jan. 16, 2008) (citing United States v. Eufrasio, 935 F.2d 553, 570 (3d Cir.1991)); see also United States v. Gorecki, 813 F.2d 40, 41-42 (3d Cir.1987). The movant bears the burden of establishing improper joinder. Brown, 2002 WL 32739530, at *3; see also United States v. DeLuca, 137 F.3d 24, 36 n. 12 (1st Cir. 1998). A court addressing the propriety of joinder may consider the contents of the indictment, representations set forth in pretrial filings, and any offers of proof submitted by the government. See Eufrasio, 935 F.2d at 567; United States v. McGill, 964 F.2d 222, 242 (3d Cir.1992). Under these principles, this" }, { "docid": "22945147", "title": "", "text": "107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). This follows from the “almost invariable assumption of the law that jurors follow their instructions.... ” Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Because of the court’s instruction, Chatman’s stricken testimony was not part of the “body of evidence” that the jury could consider in assessing guilt and thus could not be the basis for a confrontation violation. Accordingly, the court did not err in denying a mistrial. C. Stalnaker filed several unsuccessful motions to sever. He contends that he was prejudiced by having to go to trial with a “bad person co-defendant” and was “convicted by the overwhelming spillover proof of guilt of Richard Lucas.” “We review a grant or denial of severance for abuse of discretion.” United States v. Lewis, 476 F.3d 369, 383 (5th Cir.2007). “A severance is reversible only on a showing of specific compelling prejudice. There is a preference in the federal system for joint trials of defendants who are indicted together,’ particularly in conspiracy eases.” Id. (quoting Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993)) (internal citation omitted). In Lewis, id. at 384, we held that a “district court did not abuse its discretion in denying [defendants’] motions for severance” in which they “complain[ed] broadly of the volume of evidence, the disparity of evidence between defendants, and a generalized spillover effect,” but “[n]one point[ed] to any specific prejudice resulting from their combined trial.” Stalnaker raises identical arguments; the district court did not abuse its discretion. Moreover, the jury found Stalnaker not guilty on two counts on which it found his co-defendants guilty. That suggests that the jury did not blindly convict Stalnaker on spillover evidence but instead gave each defendant and each count separate consideration. D. Stalnaker alleges that the above errors cumulatively deprived him of a fair trial. But where “we find no merit to any of [the defendant’s] arguments of error, his claim of cumulative error must also fail.” United States v. Moye, 951 F.2d 59, 63 n. 7 (5th Cir.1992)." }, { "docid": "3727772", "title": "", "text": "of defendants is inherently prejudicial.”), cert. denied sub nom. Phillips v. United States, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982); United States v. Vastola, 670 F.Supp. 1244, 1261 (D.N.J.1987) (citing United States v. Somers, 496 F.2d 723, 729 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 57, 42 L.Ed.2d 58 (1974)). When a number of offenses are joined in one indictment or multiple defendants are jointly charged with a single offense, “some prejudice almost necessarily results.” Vastóla, 670 F.Supp. at 1261 (quoting Cupo v. United States, 359 F.2d 990, 993 (D.C.Cir.1966), cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967)). This level of prejudice, however, is permissible so long as the technical strictures of Rule 8 are met. Thus, Rule 8(a) is generally satisfied if the indictment charges offenses which are temporally or logically connected to support the conclusion that the offenses are part of the same plan. Gorecki, 813 F.2d at 42; see also United States v. Gonzalez, 918 F.2d 1129, 1136 n. 6 (3d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1637, 113 L.Ed.2d 733 (1991); United States v. Di Pasquale, 561 F.Supp. 1338, 1347 (E.D.Pa.1983), aff'd, 740 F.2d 1282 (3d Cir.1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1226, 84 L.Ed.2d 364 (1985). Severance under Rule 14 is within the discretion of the trial court. United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir.), cert. denied sub nom. Idone v. United States, — U.S. -, 112 S.Ct. 340, 116 L.Ed.2d 280 (1991); United States v. Boyd, 595 F.2d 120, 125 (3d Cir.1978). Rule 14 authorizes a trial court to sever counts or defendants where, despite an indictment’s technical compliance with Rule 8, joinder would result in a “manifestly unfair trial.” Vastola, 670 F.Supp. at 1261 (citing United States v. Reicherter, 647 F.2d 397, 400 (3d Cir.1981)). A defendant bears a heavy burden when he or she moves for severance under Rule 14. See United States v. McGlory, 968 F.2d 309, 339-40 (3d Cir.1992); Eufrasio, 935 F.2d at 568; United States v. Sandini, 888 F.2d 300, 305 (3d" }, { "docid": "4771791", "title": "", "text": "part: If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance or provide whatever other relief justice requires ... In deciding a motion to sever, the district court must “weigh the prejudice resulting from a single trial of counts against the expense and inconvenience of separate trials.” United States v. Hollis 971 F.2d 1441, 1456 (10th Cir.1992) (citation omitted), cert. denied, — U.S. -, 113 S.Ct. 1580, 123 L.Ed.2d 148 (1993). Because severance is a matter of judicial discretion and not a right of the parties, the defendant must carry “ ‘a heavy burden of showing real prejudice to his case.’ ” United States v. McConnell, 749 F.2d 1441, 1444 (10th Cir.1984) (quoting United States v. Petersen, 611 F.2d 1313, 1331 (10th Cir.), cert, denied, 447 U.S. 905, 100 S.Ct. 2985, 2986, 64 L.Ed.2d 854 (1979)). “The Supreme Court has emphasized that trial courts have ‘a continuing duty at all stages of the trial to grant a severance if prejudice does appear.’ ” United States v. Peveto, 881 F.2d 844, 857 (10th Cir.), cert, denied, .493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989) (quoting Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (I960)). The federal criminal justice system prefers and values joint trials. Zafiro, — U.S.-, 113 S.Ct. 933, 122 L.Ed.2d at 324. Joint trials promote economy and efficiency and “serve the interests of justice by avoiding the scandal and inequity of inconsistent trials.” Richardson v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176 (1987). These interests are most apparent when co-defendants are jointly indicted and face common conspiracy charges. See United States v. Jenkins, 904 F.2d 549, 557 (10th Cir.), cert, denied, 498 U.S. 962, 111 S.Ct. 395, 112 L.Ed.2d 404 (1990). Consequently, “[cjourts generally adhere to the principle that ‘those indicted together, especially co-conspirators, should be tried together.’ ” Peveto, 881 F.2d" }, { "docid": "23577835", "title": "", "text": "of these allegations seriatim. A. We review the joinder of two or more defendants under Fed.R.Crim.P. 8(b) de novo and the denial of a motion for severance under Fed.R.Crim.P. 14 for abuse of discretion. United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir.), cert. denied, — U.S. -, 112 S.Ct. 340, 116 L.Ed.2d 280 (1991). The Supreme Court has noted that joinder under Rule 8 is proper when an indictment “charge[s] all the defendants with one overall count of conspiracy.... ” United States v. Lane, 474 U.S. 438, 447, 106 S.Ct. 725, 731, 88 L.Ed.2d 814 (1986); see also Eufrasio, 935 F.2d at 567 (“As long as the crimes charged are allegedly a single series of acts or transactions, separate trials are not required.”). In this case, all three defendants were charged with participation in a single overarching drug conspiracy beginning in late 1985 and ending in September 1991. That is sufficient for joining these defendants in a single trial. See' Eufrasio, 935 F.2d at 567. Moreover, the indictment alleged as overt acts in furtherance of the conspiracy the substantive acts with which these defendants were charged, further demonstrating the efficiency of a joint trial. Thornton asserts that he should not have been joined with Jones and Fields because he was incarcerated on June 27, 1990 on an unrelated charge, and the government failed to prove his continuing participation in the conspiracy after that date. Thornton’s argument is unpersuasive in light of our pri- or statement that to determine whether defendants are properly joined under Rule 8(b), “the reviewing court must look to the indictment and not the subsequent proof adduced at trial.” United States v. McGill, 964 F.2d 222, 241 (3d Cir.), cert. denied, — U.S. -, 113 S.Ct. 664, 121 L.Ed.2d 588 (1992). The indictment in this case alleged that Thornton participated in the conspiracy through its conclusion in September 1991. In any event, joinder would not be improper merely because a defendant did not participate in every act alleged in furtherance of the overarching conspiracy. See, e.g., United States v. DeVarona, 872 F.2d 114, 120 (5th" }, { "docid": "22823273", "title": "", "text": "the order denying severance. Sandini 888 F.2d at 305. In determining whether the district court abused its discretion by denying Curcio’s motion for severance, “we keep in mind that' a trial court should balance the public interest in joint trials against the possibility of prejudice inherent in the joinder of defendants,- ... [and that] [t]he public interest in judicial economy favors joint trials where the same evidence would be presented at separate trials of defendants charged with a single conspiracy.” Eufrasio, 935 F.2d at 568. See Zafiro v. United States, — U.S. -, -, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993). In this case, as in Eufrasio, the public interest in a joint trial substantially outweighed the possibility of prejudice to the defendant. Id. at 569. The -indictment charged both Curdo and Console with RICO violations related to the Law Firm-Markoff Enterprise, and, as we have discussed, there was substantial independent, evidence of Curcio’s guilt. See Sandini 888 F.2d at 307. Thus, we find no basis in the record to indicate that the district court abused its discretion in denying Curcio’s motion for severance. Moreover, even if the district court abused its discretion by denying Curcio’s motion, to obtain a reversal, Curdo “must demonstrate ‘clear and substantial prejudice resulting in a manifestly unfair trial.’ ” Sandini 888 F.2d at 307 (quoting United States v. Reicherter, 647 F.2d 397, 400 (3d Cir.1981)) (emphasis in Sandini). Curdo has not met this heavy burden, as “[prejudice should not be found in a joint trial just because all evidence adduced is not germane to all counts against each defendant” or some evidence adduced is “more damaging to one defendant than others.” Eufrasio, 935 F.2d at 568 (citing Sandini 888 F.2d at 307; United States v. Sebetich, 776 F.2d 412, 427 (3d Cir.1985), cert. denied, 484 U.S. 1017, 108 S.Ct. 725, 98 L.Ed.2d 673 (1988)). Furthermore, the limiting instruc tions given by the district court prior to the introduction of evidence that the jury could not consider against Curdo helped to “compartmentalize” the evidence and thus diminished any potential prejudice to Curdo. See, e.g.," }, { "docid": "22211759", "title": "", "text": "grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a rehable judgment about guilt or innocence.” Zafiro v. United States, — U.S. -, -, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993), see also United States v. Console, 13 F.3d 641, 655-56 (3d Cir.1993). The district court in this case concluded before trial that severance of Cobb from the six co-defendants was not required because Cobb had failed to show specifically how joinder would be prejudicial. The record in this case demonstrates that he suffered no such prejudice. Most of the evidence presented at the trial concerned drug transactions that occurred while Cobb was an active participant in the JBM. Although Cobb argues that because he was denominated an “enforcer” much of the testimony at trial relating to drug sales and distribution prejudiced him, we note that evidence at trial indicated that Cobb was a courier and a supplier as well. Even if the evidence had shown that he was solely an agent of violence, we stated in Eufrasio that “[prejudice should not be found in a joint trial just because all evidence adduced is not germane to all counts against each defendant.” 935 F.2d at 968. We find no abuse of discretion in the court’s denying Cobb’s motion for a separate trial. Cobb’s final argument in this vein is that, in any event, the court erred in joining him with these six specific co-defendants. However, the Supreme Court has noted that joinder under Rule 8 is proper when an indictment “charge[s] all the defendants with one overall count of conspiracy....” United States v. Lane, 474 U.S. 438, 447, 106 S.Ct. 725, 730, 88 L.Ed.2d 814 (1986); see also Eufrasio, 935 F.2d at 567 (“As long as the crimes charged are allegedly a single series of acts or transactions, separate trials are not required.”). In this case, all the defendants were charged with participation in a single overarching drug conspiracy beginning in late 1985 and" }, { "docid": "10443972", "title": "", "text": "S.Ct. 1226, 84 L.Ed.2d 364 (1985). Mere allegations of prejudice are insufficient to meet this burden. A defendant \"must demonstrate ‘clear and substantial prejudice.’ ” Gorecki, 813 F.2d at 43 (quoting United States v. Sebetich, 776 F.2d 412, 427 (3d Cir.1985), cert. denied, 484 U.S. 1017, 108 S.Ct. 725, 98 L.Ed.2d 673 (1988)); United States v. Wright-Barker, 784 F.2d 161, 175 (3d Cir.1986). '“[Njeither a disparity in evidence nor the introduction of evidence more damaging to one defendant than another entitles the seemingly less culpable defendant to severance.’ ” Sebetich, 776 F.2d at 427 (quoting United States v. Simmons, 679 F.2d 1042 (3d Cir.1982)). In determining whether to sever, the \"court should balance the public interest in joint trials against the possibility of prejudice inherent in the joinder of defendants.\" Eufrasio, 935 F.2d at 568 (citing De Peri, 778 F.2d at 984). Joint trials \"conserve [public] funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial.\" Bruton v. United States, 391 U.S. 123, 143, 88 S.Ct. 1620, 1631-32, 20 L.Ed.2d 476 (1968). Moreover, \"Q]oint trials generally serve the interest of justice by avoiding inconsistent verdicts and ... advantages which sometimes operate to the defendant’s benefit.\" Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 1708-09, 95 L.Ed.2d 176 (1987). A motion for severance in this case would have been unsuccessful for many of the same reasons the motion for bifurcation was denied. The Indictment charged Nguyen in three separate counts for conspiracy to sell firearms, the sale of the Weapon without the required license and possession of the Weapon while being a convicted felon. All three counts of the Indictment were centered around the same transaction. With the exception of the prior felony conviction, all of the evidence presented was relevant to each count. To sever the trial would have resulted in a duplicative trial and waste of judicial resources. Significantly, it appears Nguyen would not have been able to show clear and substantial prejudice would have resulted from trying Counts One and Two with Count Three of the Indictment." }, { "docid": "8592766", "title": "", "text": "next argues that the district court erred in denying his motion for severance because his defense was irreconcilably inconsistent with those of his co-defendants. In particular, Trinh contends that admitted statements from co-conspirators were “terribly prejudicial” to his defense, “were being recounted by witnesses in a totem pole fashion,” and “came from conversations with Quoc and others, not with Tiem himself,” thus prejudicially impacting his involvement in the conspiracy. We review a district court’s denial of a motion for severance under Fed. R.Crim.P. 14 “for any manifest abuse of discretion which deprived appellant of a fair trial and resulted in a miscarriage of justice.” United States v. Celestin, 612 F.3d 14, 19 (1st Cir.2010) (quoting United States v. Peña-Lora, 225 F.3d 17, 33 (1st Cir.2000) (internal quotation marks omitted)). We note that “[t]he hurdle is intentionally high,” Peña-Lora, 225 F.3d at 33 (quoting United States v. Flores-Rivera, 56 F.3d 319, 325 (1st Cir.1995)) (internal quotation mark omitted), most notably in conspiracy cases where severance “is especially disfavored,” id., because joint trials “promote efficiency,” Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), and help to avoid “inconsistent verdicts,” id. (quoting Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)). Rather, severance will be warranted “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Celestin, 612 F.3d at 19 (quoting Zafiro, 506 U.S. at 539, 113 S.Ct. 933). The record shows that Trinh first moved to sever his trial from his co-defendants on the second day of trial, asserting that co-defendants’ counsel’s opening statements were antagonistic to his defense because they wrongfully characterized him as the “mastermind” of both the marijuana and money laundering schemes; in contrast, Trinh’s position was that Quoc and Tai were the actual leaders of the conspiracy. Trinh then renewed his motion to sever at various times during trial which, following careful consideration, the trial judge denied. A review of" }, { "docid": "51522", "title": "", "text": "435 U.S. 916, 98 S.Ct. 1471, 55 L.Ed.2d 507 (1978). If offenses or defendants have been improperly joined, however, severance is required as a matter of law under Rule 8. United States v. Andrews, 765 F.2d 1491, 1496 (11th Cir.1985) (“Misjoinder under Rule 8(b) is prejudicial per se----”), cert. denied, 474 U.S. 1064, 106 S.Ct. 815, 88 L.Ed.2d 789 (1986); Bledsoe, 674 F.2d at 654 (misjoinder is inherently prejudicial); United States v. Vastola, 670 F.Supp. 1244, 1261 (D.N.J.1987) (citing United States v. Somers, 496 F.2d 723, 729 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974)). When determining whether joinder is appropriate, a court generally looks to the indictment. Eufrasio, 935 F.2d at 567; Curry, 977 F.2d at 1049; Wilson, 894 F.2d at 1253. Nevertheless, “[t]rial judges may look beyond the face of the indictment to determine proper joinder in limited circumstances. Where representations made in pretrial documents other than the indictment clarify factual connections between counts, reference to those documents is permitted.” McGill, 964 F.2d at 242 (court referred to proffer by Government of evidence it would adduce at trial). In the instant case, Giampa contended “it is clear from the [Redacted Superseding Indictment] that the different conspiracies [were] not, and cannot, be linked to a common transaction which would justify a joint trial of the [Defendants.” Giampa Brief at 10. Giampa argued that the Redacted Superseding Indictment alleges numerous conspiracies and transactions to which Giampa is not a party. Id. Additionally, Giampa argued the Redacted Superseding Indictment fails to allege that he had any relationship with his co-defendants other than Vittorio and Gaito. Id. According to Giampa, the Redacted Superseding Indictment alleges his stepson, Vittorio, knew the other co-defendants and reported to Giampa. Id. at 11. Nonetheless, Giampa argued discovery had not revealed any independent proof that Vittorio or Gaito reported to Giampa, nor that Giampa conspired or acted in concert with any of his other co-defendants. Id. Giampa contended “a joint trial would result in an incurable, prejudicial effect upon his defense. A lengthy trial would undoubtedly focus on the alleged activities" } ]

[ { "docid": "22556051", "title": "", "text": "necessary so that the payment due for the use of that property which is in the public service may be determined. Reliance for that position is rested on the Minnesota Rate Cases, 230 U. S. 352, 435, and Smith v. Illinois Bell Telephone Co., 282 U. S. 133, 146. Those were cases which involved state regulation of intrastate rates of companies doing both an intrastate and interstate business. But the rule fashioned by this Court for use in those situations was not written into the Natural Gas Act. Congress indeed prescribed no formula for determining how the interstate wholesale business, whose rates are regulated, should be segregated from the other phases of the business whose rates are not regulated. Rate-making is essentially a legislative function. Munn v. Illinois, 94 U. S. 113. Congress, to be sure, has provided for judicial review of the Commission’s orders. § 19. But that review is limited to keeping the Commission within the bounds which Congress has created. When Congress, as here, fails to provide a formula for the Commission to follow, courts are not warranted in rejecting the one which the Commission employs unless it plainly contravenes the statutory scheme of regulation. If Congress had prescribed a formula it would be the duty of the Commission to follow it. But we cannot say that under the Natural Gas Act the Commission can employ only one allocation formula and that that formula must entail a segregation of property. A separation of properties is merely a step in the determination of costs properly allocable to the various classes of services rendered by a utility. But where, as here, several classes of services have a common use of the same property, difficulties of separation are obvious. Allocation of costs is not a matter for the slide-rule. It involves judgment on a myriad of facts. It has no claim to an exact science. Hamilton, Cost as a Standard for Price, 4 Law & Cont. Prob. 321. But neither does the separation of properties which are not in fact separable because they function as an integrated whole. Mr. Justice" } ]

[ { "docid": "10498969", "title": "", "text": "petitioner’s application on the merits, and although “no entry was placed by the Clerk in the file, on a docket, or in a judgment roll ... [the state court nonetheless took] cognizance of the petition and passed an order which [was] validated by the signature of the presiding officer.” Id. at 567, 65 S.Ct. at 1311. The Court stated that “the consideration of the petition by the [state] Supreme Court, the body which has authority ... to give the relief sought, makes the proceeding adversary in the sense of a true case or controversy.” Id. at 567-68, 65 S.Ct. at 1312. In light of Prentis and Summers, the Feldman Court held that the proceeding surrounding the denial of Feldman’s petition was judicial, and not legislative, ministerial, or administrative in nature because the proceeding “involved a ‘judicial inquiry’ in which the court was called upon to investigate, declare, and enforce ‘liabilities as they [stood] on the present or past facts and under laws supposed already to exist.’ ” Feldman, 460 U.S. at 479, 103 S.Ct. at 1313 (quoting Prentis, 211 U.S. at 226, 29 S.Ct. at 69). The Feldman Court affirmed the district court’s finding that it was without jurisdiction to review the final order denying the petitioner’s application for admission to the state bar, even though the “challenge [was] anchored to alleged deprivation of federally protected due process and equal protection rights.” Feldman, 460 U.S. at 485, 103 S.Ct. at 1316. The Feldman Court, however, determined that the issue of whether the state’s general rules and regulations governing admission to the bar were constitutional was within the jurisdiction of the district court. Id. at 485, 103 S.Ct. at 1316. The court concluded: United States district courts, therefore, have subject-matter jurisdiction over general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings, which do not require review of a final state-court judgment in a particular case. They do not have jurisdiction, however, over challenges to state-court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court’s action was unconstitutional. Review" }, { "docid": "22664285", "title": "", "text": "petition and passed an order which [was] validated by the signature of the presiding officer.” Ibid, (footnote omitted). We stated: “Where relief is thus sought in a state court against the action of a committee, appointed to advise the court, and the court takes cognizance of the complaint without requiring the appearance of the committee or its members, we think the consideration of the petition by the Su preme Court, the body which has authority itself by its own act to give the relief sought, makes the proceeding adversary in the sense of a true case or controversy. “A claim of a present right to admission to the bar of a state and a denial of that right is a controversy. When the claim is made in a state court and a denial of the right is made by judicial order, it is a case which may be reviewed under Article III of the Constitution when federal questions are raised and proper steps taken to that end, in this Court.” Id., at 567-569 (footnote omitted). B These precedents clearly establish that the proceedings in the District of Columbia Court of Appeals surrounding Feldman’s and Hickey’s petitions for waiver were judicial in nature. The proceedings were not legislative, ministerial, or administrative. The District of Columbia Court of Appeals did not “loo[k] to the future and chang[e] existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.” Prentis v. Atlantic Coast Line Co., 211 U. S., at 226. Nor did it engage in rulemaking or specify “the requirements of eligibility or the course of study for applicants for admission to the bar . . . .” In re Summers, swpra, at 566. Nor did the District of Columbia Court of Appeals simply engage in ministerial action. Instead, the proceedings before the District of Columbia Court of Appeals involved a “judicial inquiry” in which the court was called upon to investigate, declare, and enforce “liabilities as they [stood] on present or past facts and under laws supposed already to exist.” Prentis" }, { "docid": "22664280", "title": "", "text": "the nature of the proceedings. Id., at 140-141, 661 F. 2d, at 1316-1317. The District of Columbia Circuit stated: “We are unable to discern in the letter any desire that the court consider Feldman’s legal criticisms of the rule on their merits, or hand down a decision dealing with them. The letter made unmistakably clear that these criticisms would be litigated, if at all, in the District Court. . . .” Ibid, (footnotes omitted). II The District of Columbia Circuit properly acknowledged that the United States District Court is without authority to review final determinations of the District of Columbia Court of Appeals in judicial proceedings. Review of such determinations can be obtained only in this Court. See 28 U. S. C. § 1257. See also Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U. S. 281, 296 (1970); Rooker v. Fidelity Trust Co., 263 U. S. 413, 415, 416 (1923). A crucial question in this case, therefore, is whether the proceedings before the District of Columbia Court of Appeals were judicial in nature. A This Court has considered the distinction between judicial and administrative or ministerial proceedings on several occasions. In Prentis v. Atlantic Coast Line Co., 211 U. S. 210 (1908), railroads challenged in federal court the constitutionality of rail passenger rates set by the State Corporation Commission. The question presented by the case was whether the federal court was free to enjoin implementation of the rate order. Id., at 223. In considering this question, we assumed that the State Corporation Commission was, at least for some purposes, a court. Id., at 224. We held, however, that the federal court could enjoin implementation of the rate order because the Commission had acted in a legislative as opposed to a judicial capacity in setting the rates. Id., at 226. In reaching this conclusion, we stated: “A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by" }, { "docid": "22549026", "title": "", "text": "a preliminary to the legislative act. Most legislation is preceded by hearings and investigations. But the effect of the inquiry, and of the decision upon it, is determined by the nature of the act to which the inquiry and decision lead up. A judge sitting with a jury is not competent to decide issues of fact; but matters of fact that are merely premises to a rule of law be may decide. He may find out for himself, in whatever way seems best, whether a supposed statute ever really was passed. In Pickering v. Barkley, Style, 132, merchants .were asked by the court to state their understanding as an aid to-the decision of a demurrer. The nature of the final act determines the nature of the previous inquiry. As the judge is bound to declare the law he must know or discover the facts that establish the law. So when the final act is legislative the decision which induces it cannot be judicial in the practical sense, although the questions considered might be the same that would arise in the trial of a case. If a state constitution should provide for a hearing before any law should be passed, and should declare that it should be a judicial proceeding in rem and the decision binding upon all the world, it hardly is to be supposed that the simple device could make the constitutionality of the law res judicata, if it subsequently should be drawn in question before a court of the United States. And all that we have said would be equally true if an appeal had been taken to the Supreme Court of Appeals and it had confirmed the rate. Its action in doing so would not have been judicial, although the questions debated by it might have been the same that might come before it as a court, and would have been discussed and passed upon by it in the same way that it would deal with them if they arose afterwards in a case properly so called. We gather that these are the views of the Supreme" }, { "docid": "1774890", "title": "", "text": "New Orleans Public Service, Inc. v. Council of City of New Orleans, — U.S.-, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989), another case where a utility claimed that federal law preempted certain state actions in setting rates. The Court stated that whether an agency’s proceeding is judicial or legislative depends upon the “nature of the final act” which the proceeding is intended to produce. New Orleans Pub. Serv., — U.S. at-, 109 S.Ct. at 2519, 105 L.Ed.2d at 319 (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226-27, 29 S.Ct. 67, 69-70, 53 L.Ed. 150 (1908) (Holmes, J.)). The Court concluded that “ratemaking is an essentially legislative act” and that the suit, as a challenge to completed legislative action, did not represent “the interference with ongoing judicial proceedings against which Younger was directed.” Id., — U.S. at -, 109 S.Ct. at 2520, 105 L.Ed.2d at 319-20. In Mid-Plains Telephone, the district court in Wisconsin held that New Orleans Public Service controlled the issue of Younger abstention and precluded abstention from the claims brought under 47 U.S.C. § 401(b). See Mid-Plains Tel. Co., supra. We agree. The Tennessee Commission’s proceedings were sufficiently concerned with ratemaking to make them legislative in nature. In addition, it is clear that the underlying reason for Younger abstention, federal comity, is absent in this case. There is no purely separate function of the state in the separations process at issue here. The actions of the state are necessarily intertwined with federal actions because the FCC has final authority to prescribe uniform cost separations procedures for both intrastate and interstate telephone service. The express grant of jurisdiction under § 401(b) indicates the intent of Congress for federal courts to resolve these issues. Although we conclude that the district court had subject matter jurisdiction and that abstention was improper, we believe that this matter is not yet ripe for adjudication. Under the doctrine of primary jurisdiction, questions within the special competency of an administrative agency should be resolved by that agency. In re Long Distance Telecommunications Litigation, 831 F.2d 627, 631 (6th Cir.1987). The principal reasons" }, { "docid": "22731544", "title": "", "text": "considered might be the same that would arise in the trial of a case.” Id., at 226-227 (citations omitted). We have since reaffirmed both the general mode of analysis of Prentis, see District of Columbia Court of Appeals v. Feldman, 460 U. S. 462, 476-479 (1983), and its specific holding that ratemaking is an essentially legislative act, Colorado Interstate Gas Co. v. FPC, 324 U. S. 581, 589 (1945). Thus, the Council’s proceedings here were plainly legislative. That characterization does not, however, end the inquiry. In Prentis, while we found the challenged agency proceeding legislative in character, we nonetheless held equitable intervention inappropriate because, we determined, the attack on the rate order was premature. Although we made clear that those challenging the rates “were not bound to wait for pro ceedings brought to enforce the rate and to punish them for departing from it,” 211 U. S., at 228, because Virginia provided for legislative review of commission rates by appeal to the state courts, we concluded that the challengers “should make sure that the State in its final legislative action would not respect what they think their rights to be, before resorting to the courts of the United States.” Id., at 230. We were as concerned, in other words, to preserve the integrity of a unitary and still-to-be-completed legislative process as we were, under Huffman v. Pursue, Ltd., 420 U. S. 592 (1975), to preserve the integrity of judicial proceedings. Similarly in the present case, if the Louisiana courts’ review of Council ratemaking was legislative in nature, NOPSI’s challenge to the Council’s order should have been dismissed as unripe. There is no contention here that the Louisiana courts’ review involves anything other than a judicial act — that is, not “the making of a rule for the future,” but the declaration of NOPSI’s rights vis-a-vis the Council “on present or past facts and under laws supposed already to exist,” Prentis, supra, at 226. Nor does there seem to be room for such a contention. See State ex rel. Guste v. Council of New Orleans, 309 So. 2d 290, 294-296 (La." }, { "docid": "10498966", "title": "", "text": "462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), the Court discussed the distinction between judicial and administrative or ministerial proceedings. Feldman involved a federal suit by two lawyers challenging the refusal of the District of Columbia Court of Appeals to admit them to the bar. The significance of such a distinction is that an order emanating from a judicial proceeding of a state supreme court is not reviewable by a federal district court, but an administrative or ministerial order may be reviewable if a valid constitutional claim exists. In its discussion, the Feldman Court relied upon Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908), for guidance in determining the nature of a proceeding. The issue before the Prentis Court was whether a federal district court was free to enjoin the implementation of a rate order imposed by the District of Columbia Court of Appeals. The Prentis Court stated that “[a] judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed to exist. That is its purpose and end.” Id. at 226, 29 S.Ct. at 69. The Court found that the commission’s determination of a rate was legislative as opposed to adjudicative because the decision looked to the future and changed existing conditions by making a new rule to be applied thereafter. Id. The Court suggested that the nature of the proceeding “depends not upon the character of the body but upon the character of the proceedings.... The nature of the final act determines the nature of the previous inquiry.” Id. at 226-27, 29 S.Ct. at 69-70 (citing Ex parte Virginia, 100 U.S. 339, 348, 25 L.Ed. 676 (1880)). The Feldman Court also relied upon In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945) in its determination regarding the existence of a case or controversy. In Summers, the petitioner sought review of the Supreme Court of Illinois’s denial of petitioner’s prayer for admission to the practice of law in that state. The Court noted that even though the law of" }, { "docid": "22731545", "title": "", "text": "in its final legislative action would not respect what they think their rights to be, before resorting to the courts of the United States.” Id., at 230. We were as concerned, in other words, to preserve the integrity of a unitary and still-to-be-completed legislative process as we were, under Huffman v. Pursue, Ltd., 420 U. S. 592 (1975), to preserve the integrity of judicial proceedings. Similarly in the present case, if the Louisiana courts’ review of Council ratemaking was legislative in nature, NOPSI’s challenge to the Council’s order should have been dismissed as unripe. There is no contention here that the Louisiana courts’ review involves anything other than a judicial act — that is, not “the making of a rule for the future,” but the declaration of NOPSI’s rights vis-a-vis the Council “on present or past facts and under laws supposed already to exist,” Prentis, supra, at 226. Nor does there seem to be room for such a contention. See State ex rel. Guste v. Council of New Orleans, 309 So. 2d 290, 294-296 (La. 1975). Since the state-court review is not an extension of the legislative process, NOPSPs pre-emption claim was ripe for federal review when the Council’s order was entered. See Lane v. Wilson, 307 U. S. 268, 274-275 (1939); Bacon v. Rutland R. Co., 232 U. S. 134, 138 (1914). As a challenge to completed legislative action, NOPSI’s suit represents neither the interference with ongoing judicial proceedings against which Younger was directed, nor the interference with an ongoing legislative process against which our ripeness holding in Prentis was directed. It is, insofar as our policies of federal comity are concerned, no different in substance from a facial challenge to an allegedly unconstitutional statute or zoning ordinance — which we would assuredly not require to be brought in state courts. See Wooley v. Maynard, 430 U. S. 705, 711 (1977). It is true, of course, that the federal court’s disposition of such a case may well affect, or for practical purposes pre-empt, a future — or, as in the present circumstances, even a pending — state-court action. But" }, { "docid": "10498965", "title": "", "text": "460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), examined the scope of section 1257 of title 28 of the United States Code. In Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, the Supreme Court addressed the question of whether a federal district court had jurisdiction to hear a challenge to an Indiana Supreme Court de- cisión. The petitioner alleged that the Indiana Supreme Court’s ruling violated the Constitution and the “law of the case.” Id. at 414-15, 44 S.Ct. at 149-50. The Rooker Court held that the district court could not reach the merits of the case because, “[ujnder the legislation of Congress, no court of the United States other than [the Supreme] Court could entertain a proceeding to reverse or modify the [judgment of a state supreme court].... To do so would be an exercise of appellate jurisdiction. The jurisdiction possessed by the District Courts is strictly original.” 263 U.S. at 416, 44 S.Ct. at 150 (citations omitted). In District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), the Court discussed the distinction between judicial and administrative or ministerial proceedings. Feldman involved a federal suit by two lawyers challenging the refusal of the District of Columbia Court of Appeals to admit them to the bar. The significance of such a distinction is that an order emanating from a judicial proceeding of a state supreme court is not reviewable by a federal district court, but an administrative or ministerial order may be reviewable if a valid constitutional claim exists. In its discussion, the Feldman Court relied upon Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908), for guidance in determining the nature of a proceeding. The issue before the Prentis Court was whether a federal district court was free to enjoin the implementation of a rate order imposed by the District of Columbia Court of Appeals. The Prentis Court stated that “[a] judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under" }, { "docid": "17151109", "title": "", "text": "a unitary and ultimately judicial process, the Court stressed that the plaintiff NOPSI must be able to demonstrate that the City Council proceedings themselves qualified for Younger treatment. NOPSI, supra, 109 S.Ct. at 2518-19. Since the Council proceedings were not judicial in nature — indeed, rate-making has traditionally been viewed as a legislative activity — Younger abstention could not be invoked with regard to them. Id. at 2519-20; see District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476-79, 103 S.Ct. 1303, 1311-13, 75 L.Ed.2d 206 (1983); Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226-27, 29 S.Ct. 67, 69-70, 53 L.Ed. 150 (1908). Plaintiffs in the case at bar argue that “UDC’s condemnation determination, like the ratemaking proceeding in NOPSI, is not judicial in nature.” Plaintiffs’ Consolidated Memorandum of Law in Opposition to Defendants’ Motions to Dismiss, at 34. The Court disagrees with plaintiffs’ statement. The issues now before the state court are judicial by nature — to wit, whether UDC’s condemnation plan comports with the Public Use Clause of the fifth amendment, and what compensation should be paid to plaintiffs. The cases cited by plaintiffs for the proposition that eminent domain proceedings are always legislative are not of great assistance, as they describe only in general terms the nature of the eminent domain power. See Orange County v. Metropolitan Transportation Authority, 71 Misc.2d 691, 697, 337 N.Y.S.2d 178, 188 (Sup.Ct. Orange Co.), aff'd, 39 A.D.2d 839, 332 N.Y.S.2d 420 (2d Dep’t 1971); Brown v. McMorran, 39 Misc.2d 716, 719, 241 N.Y.S.2d 483, 486 (Sup.Ct. Westchester Co.1963), rev’d on other grounds, 23 A.D.2d 661, 257 N.Y.S.2d 74 (2d Dep’t 1965). Because the exercise of eminent domain power manifests characteristics of both legislative and judicial authority, the Court must look more closely at context and the practical concerns of the case. The condemnation proceedings now pending in state court are essentially judicial in nature. The focus of those proceedings will be to determine through judicial means whether certain legislative decisions should be validated as being in accordance with the law, and what compensation should be paid if" }, { "docid": "9915065", "title": "", "text": "of the Oklahoma Supreme Court concerning the character of ... a [prior] determination”); Okla. Natural Gas Co. v. Russell, 261 U.S. 290, 291, 43 S.Ct. 353, 67 L.Ed. 659 (1923) (“The Constitution of Oklahoma [ ] ... gives an appeal to the Supreme Court of the State, acting in a legislative capacity ..., with power to substitute a different order and to grant a supersedeas in the meantime.”); cf. Prentis v. Atl. Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150 (1908) (“We shall assume that when [ ] ... a state Constitution sees fit to unite legislative and judicial powers in a single hand, there is nothing to hinder, so far as the Constitution of the United States is concerned.”). In addition, the Supreme Court in New Orleans Public Service, Inc. v. Council of New Orleans (“NOPSI”), 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989), said that the proper characterization of an agency’s actions “depends not upon the character of the body but upon the character of the proceedings. ... The nature of the final act determines the nature of the previous inquiry.” Id. at 371, 109 S.Ct. 2506 (first alteration in original) (internal quotation marks and citation omitted). NOPSI teaches that [a] judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. Id. at 370-71, 109 S.Ct. 2506 (internal quotation marks and citation omitted). The Companies argue that Pennsylvania has not clearly decided whether the Commonwealth Court’s review of a PUC order is legislative or judicial, while the PUC Defendants counter that the Pennsylvania Administrative Law and Procedure Act and the Pennsylvania Judicial Code unequivocally call appellate review of PUC proceedings “judicial.” (PUC Defendants’ Br. at 44.) The District Court concluded that the Commonwealth Court’s review of the PUC Order was" }, { "docid": "12972103", "title": "", "text": "Allstate, however, does not persuasively argue that the principles explicated in Feldman are not applicable here. Although the West Virginia Supreme Court of Appeals has not itself issued a final decision on the committee’s decision with respect to Allstate’s conduct, we nevertheless hold that the Rooker-Feldman doc trine prevents the district court from exercising subject matter jurisdiction. In conducting this analysis, we are mindful of the weight given by the Supreme Court to federal-state comity concerns that arise out of federal review of state bar proceedings and to the “strength of the state interest in regulating the state bar.” Feldman, 460 U.S. at 484 n. 16, 108 S.Ct. 1308 (quoting Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975) (stating that “[t]he interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been officers of the courts”)). The first question that we must answer is whether the Committee’s proceedings qualify as judicial actions as opposed to administrative or ministerial processes. As the Feldman Court explained: “[a] judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.... Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.” Feldman, 460 U.S. at 477, 103 S.Ct. 1303 (quoting Prentis v. Atlantic Coast Line, 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150 (1908)). In evaluating the committee’s proceedings to assess their judicial character, we examine the nature and effect of the proceeding and not the form of it. See Feldman, 460 U.S. at 478, 103 S.Ct. 1303 (quoting Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 819, 6 L.Ed. 204 (1824)). We are of opinion that the committee’s actions and opinion are of a judicial rather than administrative character. The subcommittee which conducted the hearing was a sub-committee of the committee" }, { "docid": "22549025", "title": "", "text": "U. S. 439, 440. Proceedings legislative in nature are not proceedings in a court within the meaning of Rev. Stats. § 720, no matter what may be the general or dominant character of the body in which they may take place. Southern Ry. Co. v. Greensboro Ice & Coal Co., 134 Fed. Rep. 82, 94, affirmed sub nom. McNeill v. Southern Ry. Co., 202 U. S. 543. That question depends not upon the character of the body but upon the character of the proceedings. Ex parte Virginia, 100 U. S. 339, 348. They are not a suit in which a writ of error would lie under Rev. Stats. § 709, and Act of February 18, 1875, c. 80, 18 Stat. 318. See Upshur County v. Rich, 135 U. S. 467; Wallace v. Adams, 204 U. S. 415, 423. The decision upon them cannot be res judicata when a suit is brought. See Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362. And it does not matter what inquiries may have been made as a preliminary to the legislative act. Most legislation is preceded by hearings and investigations. But the effect of the inquiry, and of the decision upon it, is determined by the nature of the act to which the inquiry and decision lead up. A judge sitting with a jury is not competent to decide issues of fact; but matters of fact that are merely premises to a rule of law be may decide. He may find out for himself, in whatever way seems best, whether a supposed statute ever really was passed. In Pickering v. Barkley, Style, 132, merchants .were asked by the court to state their understanding as an aid to-the decision of a demurrer. The nature of the final act determines the nature of the previous inquiry. As the judge is bound to declare the law he must know or discover the facts that establish the law. So when the final act is legislative the decision which induces it cannot be judicial in the practical sense, although the questions considered might be the same" }, { "docid": "22731541", "title": "", "text": "Garden State Bar Assn., 457 U. S., at 433-434 (“It is clear beyond doubt that the New Jersey Supreme Court considers its bar disciplinary proceedings as ‘judicial in nature.’ As such, the proceedings are of a character to warrant federal-court deference”). See also Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U. S., at 627 (“Because we found that the administrative proceedings in Middlesex were ‘judicial in nature’ from the outset, ... it was not essential to the decision that they had progressed to state-court review by the time we heard the federal injunction case”). The Council’s proceedings in the present case were not judicial in nature. In Prentis v. Atlantic Coast Line Co., 211 U. S. 210 (1908), several railroads requested a Federal Circuit Court “to enjoin . . . the Virginia State Corporation Commission from publishing or taking any steps to enforce a certain order fixing passenger rates,” on the ground that the proposed rates were confiscatory. Id., at 223. To decide whether the federal court was at liberty to issue the requested injunction, we examined first the nature of the challenged agency action. Under Virginia law the commission was invested with both legislative and judicial powers, and we assumed, without deciding, that “if it were proceeding against [a railroad] to enforce [the rate] order or to punish [the railroad] for a breach, “it then would be sitting as a court and would be protected from interference on the part of courts of the United States,” id., at 226. But, upon analysis, we found the proceedings in the case at hand to be legislative. Justice Holmes, writing for the Court, explained as follows: “A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of a rule" }, { "docid": "22664281", "title": "", "text": "A This Court has considered the distinction between judicial and administrative or ministerial proceedings on several occasions. In Prentis v. Atlantic Coast Line Co., 211 U. S. 210 (1908), railroads challenged in federal court the constitutionality of rail passenger rates set by the State Corporation Commission. The question presented by the case was whether the federal court was free to enjoin implementation of the rate order. Id., at 223. In considering this question, we assumed that the State Corporation Commission was, at least for some purposes, a court. Id., at 224. We held, however, that the federal court could enjoin implementation of the rate order because the Commission had acted in a legislative as opposed to a judicial capacity in setting the rates. Id., at 226. In reaching this conclusion, we stated: “A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of a rule for the future, and therefore is an act legislative not judicial in kind . . . .” Ibid. We went on to suggest that the nature of a proceeding “depends not upon the character of the body but upon the character of the proceedings.” Ibid. See generally Roudebush v. Hartke, 405 U. S. 15, 20-22 (1972); Lathrop v. Donohue, 367 U. S. 820, 827 (1961); Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249, 259 (1933); Public Service Co. v. Corboy, 250 U. S. 153, 161-162 (1919). In In re Summers, 325 U. S. 561 (1945), we considered the petitioner’s challenge to the constitutionality of a State Supreme Court’s refusal to admit him to the practice of law. At the outset, we noted that the record was not in the “customary form” because the state court had not treated the proceeding" }, { "docid": "23488965", "title": "", "text": "the extent that petitioner sought review of the facts of his own case. In reaching its decision, the Court observed that the first inquiry was whether the challenged proceedings were judicial in nature. Feldman, 460 U.S. at 476, 103 S.Ct. 1303. If so, then the district court lacked subject matter jurisdiction pursuant to 28 U.S.C. § 1257. The Supreme Court explained that: A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. Id. at 477, 103 S.Ct. 1303 (quoting Prentis v. Atlantic Coast Line, 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150 (1908)). The determination of whether a proceeding is judicial or administrative turns on the nature of the proceeding, rather than on the nature of the body conducting the proceeding. Id. Plaintiff argues that the order denying leave to appeal rendered by the Michigan Supreme Court “was neither a judicial ruling on the merits ... nor any affirmance of the [Board’s] order of discipline.” As the district court pointed out, however, the Michigan court rules prescribe that parties seeking leave to appeal must set out the issues for review and concise arguments in support. In this respect, the procedure is like that of petitioning the United States Supreme Court for a writ of certiorari, and we conclude that the Michigan court’s ruling does constitute a judicial decision. Patmon’s state proceedings concerned the application of existing rules governing the practice of law to his conduct, rather than the promulgation of rules for future application, and therefore were judicial in nature. Feldman, however, went on to state that a district court does have jurisdiction over a claim facially attacking the constitutionality of a statute or rule (a bar admission rule in Feldman), which is the result of legislative or administrative proceedings: Challenges to the constitutionality of state" }, { "docid": "22731542", "title": "", "text": "the requested injunction, we examined first the nature of the challenged agency action. Under Virginia law the commission was invested with both legislative and judicial powers, and we assumed, without deciding, that “if it were proceeding against [a railroad] to enforce [the rate] order or to punish [the railroad] for a breach, “it then would be sitting as a court and would be protected from interference on the part of courts of the United States,” id., at 226. But, upon analysis, we found the proceedings in the case at hand to be legislative. Justice Holmes, writing for the Court, explained as follows: “A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of a rule for the future, and therefore is an act legislative and not judicial in kind . . . .” Ibid. He then considered and rejected the notion that the nature of the agency’s proceedings might depend on their form: “[The proper characterization of an agency’s actions] depends not upon the character of the body but upon the character of the proceedings. . . . And it does not matter what inquiries may have been made as a preliminary to the legislative act. Most legislation is preceded by hearings and investigations. But the effect of the inquiry, and of the decision upon it, is determined by the nature of the act to which the inquiry and decision lead up. . . . The nature of the final act determines the nature of the previous inquiry. As the judge is bound to declare the law he must know or discover the facts that establish the law. So when the final act is legislative the decision which induces it cannot be judicial in the practical sense, although the questions" }, { "docid": "22203287", "title": "", "text": "raise or lower valuations, rates, or restrict of expand orders as to service? Has -it the power to make the order the Commission should have made? If it has, then the court is to exercise legislative power in that it will be laying down new ' rules, to change present conditions and to guide future' action and is not confined to definition and protection of existing rights. In Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 226, we said: “A judicial inquiry investigates, declares and enforces liabilities as they stand, on present or pa$t facts and under ■laws supposed already to exist. -That is its purpose and. end. Legislation on the other hand looks, to the future and changes existing, conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of a rule for the future, and therefore is an act legislative not judicial in kind. . ...” Under the law, the proceeding in the District Supreme Court is of a very special character. The court may be called in to advise the Commission as to the elements of. value to be by it considered, at any stage of the hearing before the Commission.\"' To modify or amend a valuation, or a rate, or a regulation of the Commission as inadequate, as the court is authorized to do, seems to us necessarily to import the power to increase the valuation, or rate, or to make a regulation more comprehensive, and to consider the evidence before it for this purpose. In other words, the proceeding in court is an appeal from the action of-the Commission in the chancery sense. In the briefs of counsel for the Commission it is so termed. The form which the bill filed is given by the Electric Company is that of a series of exceptions to the rulings of the court on the evidence and at every stage of the hearing and finally to the conclusions of fact as against the weight of the evidence." }, { "docid": "22731543", "title": "", "text": "for the future, and therefore is an act legislative and not judicial in kind . . . .” Ibid. He then considered and rejected the notion that the nature of the agency’s proceedings might depend on their form: “[The proper characterization of an agency’s actions] depends not upon the character of the body but upon the character of the proceedings. . . . And it does not matter what inquiries may have been made as a preliminary to the legislative act. Most legislation is preceded by hearings and investigations. But the effect of the inquiry, and of the decision upon it, is determined by the nature of the act to which the inquiry and decision lead up. . . . The nature of the final act determines the nature of the previous inquiry. As the judge is bound to declare the law he must know or discover the facts that establish the law. So when the final act is legislative the decision which induces it cannot be judicial in the practical sense, although the questions considered might be the same that would arise in the trial of a case.” Id., at 226-227 (citations omitted). We have since reaffirmed both the general mode of analysis of Prentis, see District of Columbia Court of Appeals v. Feldman, 460 U. S. 462, 476-479 (1983), and its specific holding that ratemaking is an essentially legislative act, Colorado Interstate Gas Co. v. FPC, 324 U. S. 581, 589 (1945). Thus, the Council’s proceedings here were plainly legislative. That characterization does not, however, end the inquiry. In Prentis, while we found the challenged agency proceeding legislative in character, we nonetheless held equitable intervention inappropriate because, we determined, the attack on the rate order was premature. Although we made clear that those challenging the rates “were not bound to wait for pro ceedings brought to enforce the rate and to punish them for departing from it,” 211 U. S., at 228, because Virginia provided for legislative review of commission rates by appeal to the state courts, we concluded that the challengers “should make sure that the State" }, { "docid": "22203286", "title": "", "text": "enable it to change its order if it sees fit, and then the court shall proceed to consider the appeal either on the original order or the changed order as the case may be. Paragraph 69 provides that in such proceedings, the burden of proof is upon the party adverse to the Commission to show by clear and satisfactory evidence that the determination, requirement, direction or order of the Commission complained of is inadequate, unreasonable or unlawful as the case may be. What is the nature of the power thus conferred on the District Supreme Court? Is it judicial or is it legislative? Is the court to pass, solely on questions of law, and look to the facts only to decide what are the questions of law really arising, or to consider whether there was any show-' ing of facts before the Commission upon which, as a matter of law, its finding can be justified? Or has it the power, in this equitable proceeding to review the exercise of discretion by the Commission and itself raise or lower valuations, rates, or restrict of expand orders as to service? Has -it the power to make the order the Commission should have made? If it has, then the court is to exercise legislative power in that it will be laying down new ' rules, to change present conditions and to guide future' action and is not confined to definition and protection of existing rights. In Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 226, we said: “A judicial inquiry investigates, declares and enforces liabilities as they stand, on present or pa$t facts and under ■laws supposed already to exist. -That is its purpose and. end. Legislation on the other hand looks, to the future and changes existing, conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of a rule for the future, and therefore is an act legislative not judicial in kind. . ...” Under the law, the proceeding in" } ]

[ { "docid": "10970547", "title": "", "text": "that it was reasonable for the jury to determine that the insured was not afraid of his wife and did not believe that she would shoot him in retaliation. Accordingly, the verdict that the shooting was accidental was allowed to stand. We find John Hancock to be factually analogous to the case sub judice and apply the legal principles espoused in that case, which plainly comports with our reading of Mississippi case law. Because the insured, Jimmie Nell Davis, had on prior occasions threatened plaintiff with deadly weapons and plaintiff had never retaliated with force but had merely disarmed her and then fled, we hold that it was reasonable for the insured to have foreseen that plaintiff would merely attempt to disarm her and then leave the house. Accordingly, we hold that the insured’s death was accidental within the meaning of the insurance policy and that plaintiff is entitled to recover the proceeds of the policy. Since plaintiff did not file proof of loss until August 25, 1980, and the policy sued on allowed defendant sixty days after submission of written proof of loss before being required to pay same, we find that prejudgment interest in this case should not run, as plaintiff contends, from the date of death, but from October 25, 1980, marking the sixtieth day after his submission of written proof of loss. Since the amount of the claim is liquidated and we find no equities existing in favor of defendant to excuse it from making prompt payment, this is a proper case for the allowance of prejudgment interest because of the defendant’s breach of contract. Interest from October 25, 1980, shall accrue at the current federal rate of 9.16% per annum until paid, as established by Section 302 of the Federal Courts Improvement Act, P.L. 97-164, effective October 1, 1982. Let an order so issue." } ]

[ { "docid": "13046747", "title": "", "text": "company for failure to pay an insurance claim unless the company had no arguable reason to deny coverage. Consolidated American Life Insurance Co. v. Toche, 410 So.2d 1303, 1305 (Miss.1982). In resolving cases dealing with bad faith, and particularly in determining whether punitive damages are appropriate, the Mississippi Supreme Court has held that if a genuine dispute over coverage exists, such dispute furnishes an arguable reason for refusing a claim whereby punitive damages are improper. See id. The court has also held that an arguable basis to deny payment exists when there is an issue as to whether the plaintiff has satisfied a condition or other term of the policy. See New Hampshire Insurance Co. v. Smith, 357 So.2d 119, 120 (Miss.1978). The general rule which prevails in this jurisdiction is that if, as a matter of law, there is an arguable reason for the insurance company to deny liability on the policy, punitive damages are improper regardless of whether the insurance company prevails or loses on the issue of liability. See Henderson v. United States Fidelity & Guaranty Co., 620 F.2d 530, 536 (5th Cir.1980); Reserve Life Insurance Co. v. McGee, 444 So.2d 803, 809 (Miss. 1983); Standard Life Insurance Co. of Indiana v. Veal, 354 So.2d 239, 248 (Miss. 1978); Lincoln National Life Insurance Co. v. Crews, 341 So.2d 1321, 1322 (Miss. 1977). In Michael v. National Security Fire & Casualty Co., 458 F.Supp. 128 (N.D.Miss.1978), it was noted that punitive damages are improper if the insurer has a legitimate or arguable reason for failing to pay the claim; furthermore, failure to pay must constitute “some intentional wrong, insult, abuse or gross negligence which amounts to an independent tort.” Id. at 131. In the present case, the plaintiff Patton testified in his deposition that any work on the house was merely to prepare for renovation. The court is of the opinion that this statement provided an arguable reason for Aetna to deny liability on the insurance policy. The plaintiff also argues, under Reserve Life Insurance Co. v. McGee, 444 So.2d at 809, that partial summary judgment regarding punitive" }, { "docid": "2107035", "title": "", "text": "and Casualty Co., 641 F.Supp. 503, 511 (N.D.Miss.1986) (same); Horton v. Hartford Life Ins. Co., 570 F.Supp. 1120 (N.D.Miss.1983) (same); Peel v. American Fidelity Assurance Co., 680 F.2d 374, 376 (5th Cir.1982) (same). In Blue Cross and Blue Shield, supra, the court noted that “in a proper punitive damages case in this state, it has long been recognized [that] the jury may consider in making a punitive damage award, the emotional distress and even attorney’s fees of the plaintiff.” Id. at 845. Hence, even if an award of extra-contractual compensatory damages is not per se permissible, state law still allows the trier of fact to consider the claimant’s economic and emotional losses when assessing punitive damages. Under certain circumstances a plaintiff may likewise be entitled to an award of attorney’s fees incurred in connection with the bad faith refusal of his claim. The court in Simpson, supra, explained that attorney’s fees are not recoverable unless the insurer’s actions are so grossly or willfully wrong as to justify the infliction of punitive damages. Id. at 253. See also Harrison v. Benefit Trust Life Insurance Co., 656 F.Supp. 304, 309 (N.D.Miss.1987). Thus, if a claimant shows that he or she is entitled to punitive damages, then an award of attorney’s fees may be appropriate as well. The final component of any recovery is an award of prejudgment interest. Absent a statutory provision, prejudgment interest is allowable at the court’s discretion if (a) the claim is for a liquidated amount or (b) the refusal to pay is accompanied by bad faith conduct sufficient to support an award of punitive damages. Bankers Life and Casualty Co. v. Crenshaw, 483 So.2d 254, 300 (Miss.1985) (Robertson, J., dissenting); Stanton and Associates, Inc. v. Bryant Construction Co., Inc., 464 So.2d 499, 502 (Miss.1985); Dunnam v. State Farm Mutual Automobile Insurance Co., 366 So.2d 668, 672 (Miss.1979); Home Insurance Co. v. Olmstead, 355 So.2d 310, 314 (Miss.1978). See also Cabell Electric Co. v. Pacific Insurance Co., 655 F.Supp. 625, 630-31 (S.D.Miss.1987). If an insurance company denies a claim, it may be liable for prejudgment interest since the amount" }, { "docid": "15053970", "title": "", "text": "complaining party as to amount to willfulness on the part of the wrongdoer.” Roberts v. Pierce, 398 F.2d 954, 957 (C.A.5, 1968); Lee v. Southern Home Sites Corp., 429 F.2d 290 (C.A.5, 1970); Atkinson v. Dixie Greyhound Lines, 143 F.2d 477 (C.A. 5.), cert. denied, 323 U.S. 758, 65 S.Ct. 92, 89 L.Ed. 607 (1944); Illinois Central R. Co. v. Ramsay, 157 Miss. 83, 127 So. 725 (1930); Woodall v. Ross, 317 So.2d 892 (Miss.1975). The district court found Koehring’s conduct fit the Mississippi test for punitive damages. We agree that Koehring’s acts were egregious enough to justify punitive damages. (C.) Interest. In its cross-appeal, Hyde asks that prejudgment interest be allowed as part of its compensatory damages. The district court did not include such interest in its award. This too is to be decided under state law. E. g., Petersen v. Klos, 433 F.2d 911 (C.A.5, 1970); Texaco, Inc. v. Lirette, 410 F.2d 1064 (C.A.5, 1969). We believe that under Mississippi law the award of prejudgment interest rested in the discretion of the awarding judge. Commercial Union Insurance Co. v. Byrne, 248 So.2d 777 (Miss.1971); Charles Stores, Inc. v. Aetna Insurance Co., 327 F.Supp. 525 (N.D.Miss.1971), aff’d, 490 F.2d 64 (C.A.5, 1974); Kelly v. Smith, 346 F.Supp. 20 (N.D.Miss. 1972), aff’d on other grounds, 485 F.2d 520 (C.A.5, 1973). We cannot say this discretion was abused. V. Koehring’s liability to Dunn The district court held Koehring not liable to Dunn for either malicious prosecution or abuse of process. 387 F.Supp. at 721. On the malicious prosecution claim, it found that Dunn’s actions, and not Koehring’s, were the primary cause of his injuries; that Koehring’s acts attempting to have Dunn punished for defying the TRO of the Oklahoma federal court were legitimate attempts to obtain civil contempt sanctions and not wrongful attempts to initiate criminal sanctions; and that even if Koehring did cause criminal process to be issued against Dunn it had probable cause for so doing which was borne out by Dunn’s conviction for criminal contempt. Id. at 717-20. Concerning abuse of process, the district court held that Koehring" }, { "docid": "4304803", "title": "", "text": "v. Bethlehem Steel Corp., 658 F.2d 103, 108 (3d Cir.1981), cert. denied, 456 U.S. 961, 102 S.Ct. 2038, 72 L.Ed.2d 485 (1982); Gulf Oil Corp. v. Pan ama Canal Co., 481 F.2d 561, 570 (5th Cir.1973). Peculiar circumstances that might prompt the district court to deny prejudgment interest include cases where the party requesting the prejudgment interest has unreasonably delayed prosecuting its claim, has made a bad faith estimate of its damages which precludes settlement or has not sustained any actual damages. Bankers Trust v. Bethlehem Steel, 658 F.2d at 108. Although a district court can only deny prejudgment interest in cases involving extraordinary circumstances, a district court possesses broader discretion in determining when prejudgment interest should commence and what rate of interest to apply. Independent Bulk Transp., Inc. v. The Vessel “Morania Abaco”, 676 F.2d 23, 25 (2d Cir.1982). The Seventh Circuit has held that the general rule in admiralty is to award prejudgment interest from the date of the collision, thereby compensating the plaintiff in full. Bunge Corp. v. American Commercial Barge Line Co., 630 F.2d 1236, 1242 (7th Cir.1980); Elgin, Joliet and E. Ry. Co. v. American Commercial Line, Inc., 317 F.Supp. 175, 177 (N.D.Ill.1970); United States v. The M/V Martin, 198 F. Supp. 171, 174, 177 (S.D.Ill.1961), aff'd, 313 F.2d 851 (7th Cir.1963). The district court in the present case awarded prejudgment interest at the rate of 11% per annum from July 15, 1978, the date of the collision. Memorandum Opinion at 327. We affirm the district court’s award of prejudgment interest from the date of the collision. Prejudgment interest, as part of the loss itself, is awarded to a victim who has incurred out-of-pocket cash expenses and/or a loss of use of its property. Gulf Oil v. Panama Canal, 481 F.2d at 571. In cases involving collisions between two vessels, the courts have held that prejudgment interest should not be awarded before the injured party pays for the repairs if damages include both demur-rage costs and repair costs. Stevens v. F/V Bonnie Doon, 731 F.2d 1433, 1437-38 (9th Cir.1984); Independent Bulk v. “Mor-ania Abaco\", 676" }, { "docid": "15053971", "title": "", "text": "judge. Commercial Union Insurance Co. v. Byrne, 248 So.2d 777 (Miss.1971); Charles Stores, Inc. v. Aetna Insurance Co., 327 F.Supp. 525 (N.D.Miss.1971), aff’d, 490 F.2d 64 (C.A.5, 1974); Kelly v. Smith, 346 F.Supp. 20 (N.D.Miss. 1972), aff’d on other grounds, 485 F.2d 520 (C.A.5, 1973). We cannot say this discretion was abused. V. Koehring’s liability to Dunn The district court held Koehring not liable to Dunn for either malicious prosecution or abuse of process. 387 F.Supp. at 721. On the malicious prosecution claim, it found that Dunn’s actions, and not Koehring’s, were the primary cause of his injuries; that Koehring’s acts attempting to have Dunn punished for defying the TRO of the Oklahoma federal court were legitimate attempts to obtain civil contempt sanctions and not wrongful attempts to initiate criminal sanctions; and that even if Koehring did cause criminal process to be issued against Dunn it had probable cause for so doing which was borne out by Dunn’s conviction for criminal contempt. Id. at 717-20. Concerning abuse of process, the district court held that Koehring did not misuse any processes issued, could not be held liable for any defamatory matter it caused to be presented to the Oklahoma federal court, and did not act improperly in its intrusion into the government’s prosecution of Dunn for contempt. Id. at 720-21. The lower court also found “legally irrelevant” Dunn’s claim that Koehring’s harassment of Hyde was designed to harm Dunn as well as Hyde because Dunn had a large financial stake in the outcome of the Hyde litigation. Id. at 721 n.37. We affirm the conclusion of the district court that not all of the essential elements for malicious prosecution were present because Koehring had probable cause to initiate contempt proceedings against Dunn, and because the criminal contempt proceedings, at least initially, were successful. 387 F.Supp. at 719-20. The district court was incorrect in its conclusion that Koehring committed no abuse of process against Dunn. The principal abuse was Koehring’s effort to injure Dunn by use of harassing criminal and civil processes against Hyde to prevent collection of Hyde’s Mississippi judgment. Hyde" }, { "docid": "2107034", "title": "", "text": "a majority consisting of Lee, Prather, Anderson, Griffin, and Zuccaro, J.J.); Pioneer Life Ins. Co. of Illinois v. Moss, 513 So.2d 927, 931 (Miss.1987) (Robertson, J., concurring, joined by Prather and Anderson, JJ.); Aetna Casualty and Surety Co. v. Day, 487 So.2d 830, 835 (Miss.1986); Bankers Life and Casualty Co. v. Crenshaw, 483 So.2d 254, 299 n. 18 (Miss.1985) (Robertson, J., dissenting, joined by Walker, P.J., and Prather, J.); State Farm Fire and Cas. Co. v. Simpson, 477 So.2d 242, 253 (Miss.1985); Blue Cross and Blue Shield of Mississippi v. Campbell, 466 So.2d 833, 847 (Miss.1985) (Robertson, J., specially concurring with the denial of the petition for rehearing, joined by Prather and Anderson, JJ.); Travelers Indemnity Co. v. Wetherbee, 368 So.2d 829, 836 (Miss.1979); Bellefonte Insurance Co. v. Griffin, 358 So.2d 387 (Miss.1978). See also Tutor v. Ranger Insurance Co., 804 F.2d 1395 (5th Cir.1986) (applying Miss, law); Jones v. Benefit Trust Life Ins. Co., 617 F.Supp. 1542, 1545-50 (S.D.Miss.1985), reversed in relevant part, 800 F.2d 1397 (5th Cir.1986) (same); Davidson v. State Farm Fire and Casualty Co., 641 F.Supp. 503, 511 (N.D.Miss.1986) (same); Horton v. Hartford Life Ins. Co., 570 F.Supp. 1120 (N.D.Miss.1983) (same); Peel v. American Fidelity Assurance Co., 680 F.2d 374, 376 (5th Cir.1982) (same). In Blue Cross and Blue Shield, supra, the court noted that “in a proper punitive damages case in this state, it has long been recognized [that] the jury may consider in making a punitive damage award, the emotional distress and even attorney’s fees of the plaintiff.” Id. at 845. Hence, even if an award of extra-contractual compensatory damages is not per se permissible, state law still allows the trier of fact to consider the claimant’s economic and emotional losses when assessing punitive damages. Under certain circumstances a plaintiff may likewise be entitled to an award of attorney’s fees incurred in connection with the bad faith refusal of his claim. The court in Simpson, supra, explained that attorney’s fees are not recoverable unless the insurer’s actions are so grossly or willfully wrong as to justify the infliction of punitive damages. Id. at 253." }, { "docid": "2107037", "title": "", "text": "in most cases is liquidated. See, e.g., Davis v. Continental Casualty Co., 560 F.Supp. 723, 730 (N.D.Miss.1983); Western Line Consol. Sch. Dist. v. Continental Casualty Co., 632 F.Supp. 295 (N.D.Miss.1986). Even if the underlying contract claim is paid prior to trial, the insurer may be liable for prejudgment interest on the amount from the time the claim reasonably should have been paid and the time it actually was paid. If, as in the case sub judice, the plaintiff proceeds to trial seeking extracontractual and punitive damages, the insurer may find itself assessed with prejudgment interest on the unliquidated claims if the element of bad faith is present. In other words, by proving an entitlement to punitive damages, a plaintiff opens up the possibility of getting prejudgment interest; this exposure is not necessarily mitigated by the insurer’s decision to pay off the claim in an untimely fashion prior to trial. B. An Insurer’s Duty to Adequately Investigate a Claim Prior to Denying It The mere fact that an investigation of a claim is deficient or incompetent is not sufficient to render the insurance company liable for punitive damages. Fedders Corp. v. Boatright, 493 So.2d 301, 312 (Miss.1986); Bellefonte Insurance Co. v. Griffin, 358 So.2d 387, 391 (Miss.1978). This is true even where an underwriter could have done more, O’Connor v. Equitable Life Assurance Society of the United States, 592 F.Supp. 595, 598 (N.D.Miss.1984), or where clerical mistakes resulted in a negligent denial of a claim. Consolidated American Life Insurance Co. v. Toche, 410 So.2d 1303, 1306 (Miss.1982). Nevertheless, Mississippi law imposes a clear duty upon an insurance company to promptly and adequately investigate an insured’s claim before denying it. An insurance company must, at a minimum, (1) check to see if the policy provision relied upon to deny the claim has been held invalid and unenforceable by a state or federal court, see Employers Mutual Casualty Co. v. Tompkins, 490 So.2d 897 (Miss.1986); see also Richards v. Allstate Insurance Co., 693 F.2d 502 (5th Cir.1982) (applying Mississippi law); (2) interview its employees and agents to ascertain if they possess any relevant" }, { "docid": "10938551", "title": "", "text": "action arising in tort whether the insurer is liable on the underlying policy contract or not, no Mississippi court has embraced this doctrine. The Plaintiffs’ contention that Griffin v. Ware adopts the Gruenberg doctrine is based on a misreading of Griffin. The holding of Gruenberg adopted by the Griffin court was that non-insurer defendants were not bound by any duty of good faith and fair dealing to the insureds. The Plaintiffs have not cited, and the Court has not discovered on its own search, any cases in which a court applying Mississippi law has held that there may be a viable cause of action for bad faith failure to pay where the insurer prevails on the question of policy coverage. In fact, all decisions involving Mississippi law indicate that the insured must establish not only that the insurer was liable on the policy but that the insurer had no “arguable reason” for denying coverage. The general rule which appears to prevail in this jurisdiction is that if, as a matter of law, there is an “arguable rea son” for the insurance company to deny liability on the policy, punitive damages are improper regardless of whether the insurance company prevails or loses on the issue of liability. See Henderson v. United States Fidelity & Guaranty Co., 620 F.2d 530, 536 (5th Cir.1980); Reserve Life Insurance Co. v. McGee, 444 So.2d 803, 809 (Miss.1983); Standard Life Insurance Co. of Indiana v. Veal, 354 So.2d 239, 248 (Miss.1978). O’Connor v. Equitable Life Assur. Soc. of U.S., 592 F.Supp. 595, 597 (N.D.Miss.1984) (summary judgment for insurer on issue of bad faith). See also, Blue Cross & Blue Shield of Mississippi, Inc. v. Campbell, 466 So.2d 833 (Miss.1984) (J.N.O.V. for insurer on issue of extra-contractural damages); Consolidated American Life Insurance Co. v. Toche, 410 So.2d 1303, 1306 (Miss.1982) (no punitive damages where insurer has arguable reason to deny claim); Peel v. American Fidelity Assurance Co., 680 F.2d 374, 377 (5th Cir.1982) (same). Accordingly, there is no need to consider any evidence of alleged bad faith on the part of the Defendants and the counts of" }, { "docid": "5219562", "title": "", "text": "Cas. Co., 632 F.Supp. 295, 301 (N.D.Miss.1986). Thus, the court is required to give the terms of a policy their “plain meaning” unless some ambiguity exists. Aero Intern., Inc. v. U.S. Fire Ins. Co., 713 F.2d 1106 (5th Cir.1983); Hicks v. Quaker Oats Co., 662 F.2d 1158 (5th Cir.1981). It likewise is well settled law in this court that insurance contracts, and each and every provision thereof, are to be construed strongly against the drafter. Brander v. Nabors, 443 F.Supp. 764 (N.D.Miss.), aff'd, 579 F.2d 888 (5th Cir.1978). In this diversity-based declaratory judgment action, the substantive law of the State of Mississippi controls. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Under Mississippi law, the court must construe any ambiguities in a contract of insurance in favor of the insured and in favor of a finding of indemnity or coverage. Government Employees Ins. Co. v. Brown, 446 So.2d 1002 (Miss.1984); Monarch Ins. Co. of Ohio v. Cook, 336 So.2d 738 (Miss.1976); New Orleans Furniture Mfg. Co. v. Great Am. Ins. Co., 413 F.2d 1278 (5th Cir.1969); Patton v. Aetna Ins. Co., 595 F.Supp. 533 (N.D.Miss.1984). Likewise, the court must attempt to ascertain and give effect to the mutual intention of the parties. Rubel v. Rubel, 221 Miss. 848, 75 So.2d 59 (1954). Applying these principles to the case sub judice, the court must now determine whether there is any coverage available for Ewing under the aviation insurance policy issued by National. National argues that the language of the policy leads to the conclusion that no coverage is available for the following reasons: 1) Ewing was a passenger in the aircraft when he was injured; 2) the policy does not provide coverage for passengers because Ag-Chem had not purchased any passenger coverage; thus, 3) there was no coverage for Ewing. The defendants’ argument is somewhat more, involved. Defendants state that the policy drafted by National is ambiguous in that it purports to provide coverage in one provision while apparently seeking to deny coverage in another provision. Defendants also argue that National “would not sell”" }, { "docid": "779234", "title": "", "text": "384 So.2d 69 (Miss.1980); Aldridge v. Johnson, 318 So.2d 870 (Miss.1975). If intentional or grossly negligent conduct causes the infliction of emotional distress, although no physical injury has resulted, recovery will be permitted under Mississippi law. Jones, supra; Saenger Theatres Corp. v. Herndon, 180 Miss. 791, 178 So. 86 (1938); Lyons v. Zale Jewelry Co., 246 Miss. 139, 150 So.2d 154 (1963); Daniels v. Adkins Protective Service, Inc., 247 So.2d 710 (Miss.1971). This standard of proof is essentially the same as the one applicable to plaintiff insureds who seek to recover punitive damages in bad faith insurance cases. Jones, supra. These rules were derived, however, in the context of traditional tort actions. In 1977, the Mississippi Supreme Court initiated the concept that an insurance company’s refusal to pay a legitimate claim of its insured could constitute an independent tort. Standard Life Insurance Co. v. Veal, 354 So.2d 239 (Miss.1977). In Standard Life, the court allowed recovery of punitive damages in a breach of contract action because the breach constituted a willful and independent wrong. Id. at 247-48. In creating an independent tort action for failure to pay a legitimate claim under an insurance contract, the court declined to address the issue of whether extracontractual or tort damages would be allowable in the same situation. See footnote 1, supra, at 505. See also Jones, supra, at 1548. In the case sub judice, plaintiffs allege that the defendant intentionally inflicted emotional distress upon them by denying their claim for proceeds under the policy. Assuming, arguendo, that a remedy is available to them under Mississippi law, it is clear that they must show at a minimum that the denial was (a) a wanton or shamefully wrong, or (b) outrageous conduct, or (c) an act done maliciously or intentionally, or (d) an act done with such gross negligence or recklessness as to show a callous indifference to the consequences. Horton v. Hartford Life Insurance Co., 570 F.Supp. 1120 (N.D.Miss.1983); Peel v. American Fidelity Assur. Co., 680 F.2d 374 (5th Cir.1982); Jones v. Benefit Trust, supra. The court is of the opinion for the reasons" }, { "docid": "2107036", "title": "", "text": "See also Harrison v. Benefit Trust Life Insurance Co., 656 F.Supp. 304, 309 (N.D.Miss.1987). Thus, if a claimant shows that he or she is entitled to punitive damages, then an award of attorney’s fees may be appropriate as well. The final component of any recovery is an award of prejudgment interest. Absent a statutory provision, prejudgment interest is allowable at the court’s discretion if (a) the claim is for a liquidated amount or (b) the refusal to pay is accompanied by bad faith conduct sufficient to support an award of punitive damages. Bankers Life and Casualty Co. v. Crenshaw, 483 So.2d 254, 300 (Miss.1985) (Robertson, J., dissenting); Stanton and Associates, Inc. v. Bryant Construction Co., Inc., 464 So.2d 499, 502 (Miss.1985); Dunnam v. State Farm Mutual Automobile Insurance Co., 366 So.2d 668, 672 (Miss.1979); Home Insurance Co. v. Olmstead, 355 So.2d 310, 314 (Miss.1978). See also Cabell Electric Co. v. Pacific Insurance Co., 655 F.Supp. 625, 630-31 (S.D.Miss.1987). If an insurance company denies a claim, it may be liable for prejudgment interest since the amount in most cases is liquidated. See, e.g., Davis v. Continental Casualty Co., 560 F.Supp. 723, 730 (N.D.Miss.1983); Western Line Consol. Sch. Dist. v. Continental Casualty Co., 632 F.Supp. 295 (N.D.Miss.1986). Even if the underlying contract claim is paid prior to trial, the insurer may be liable for prejudgment interest on the amount from the time the claim reasonably should have been paid and the time it actually was paid. If, as in the case sub judice, the plaintiff proceeds to trial seeking extracontractual and punitive damages, the insurer may find itself assessed with prejudgment interest on the unliquidated claims if the element of bad faith is present. In other words, by proving an entitlement to punitive damages, a plaintiff opens up the possibility of getting prejudgment interest; this exposure is not necessarily mitigated by the insurer’s decision to pay off the claim in an untimely fashion prior to trial. B. An Insurer’s Duty to Adequately Investigate a Claim Prior to Denying It The mere fact that an investigation of a claim is deficient or incompetent" }, { "docid": "13322957", "title": "", "text": "So.2d at 58 (emphasis added). The Mississippi Supreme Court could have directed the chancery judge to determine the amount of damages to the walls himself if that determination became necessary. The trial record in Munn included some evidence about the amount of damage to the walls. 115 So.2d at 57. We agree with the Insurance Companies that the court’s choice in these circumstances to remand the award to the appraisers reveals a general rule that the appraisers, rather than the trial judge or jury, should correct errors that the judge or jury may find to exist. This approach would be inappropriate only when an appraisal is vacated for fraud or another reason casting doubt on the basic competency of the appraisers. As a practical matter, a remand to the appraisers is the most reasonable approach after the trial in this case. If the jurors had found that there was no valid agreement with Pray and that the appraisal was deficient, a redetermination of the loss would have been necessary. Dr. Mitchell could not have anticipated that the jury would fix the amount of loss, for he failed to introduce the evidence necessary to give them a basis for that determination. Our conclusion that the Insurance Companies correctly argued that Dr. Mitchell could not endorse any settlement agreement reached with Pray controls the question whether Dr. Mitchell deserves prejudgment interest on any award. Dr. Mitchell’s claim was not liquidated at the time of the suit. The Insurance Companies have always been ready to tender the award set by the appraisers. Their refusal to pay more was not frivolous, or in bad faith. The Mississippi cases do not allow a trial court to award pre-judgment interest in such circumstances. See, e. g., Home Insurance Co. v. Olmstead, Miss. 1978, 355 So.2d 310; Commercial Union Insurance Co. v. Byrne, Miss. 1971, 248 So.2d 777. The judgment is REVERSED and REMANDED for a new trial. . The appraisal clause in each policy provided as follows: In case the insured and this Company shall fail to agree as to the actual cash value or the" }, { "docid": "13322958", "title": "", "text": "that the jury would fix the amount of loss, for he failed to introduce the evidence necessary to give them a basis for that determination. Our conclusion that the Insurance Companies correctly argued that Dr. Mitchell could not endorse any settlement agreement reached with Pray controls the question whether Dr. Mitchell deserves prejudgment interest on any award. Dr. Mitchell’s claim was not liquidated at the time of the suit. The Insurance Companies have always been ready to tender the award set by the appraisers. Their refusal to pay more was not frivolous, or in bad faith. The Mississippi cases do not allow a trial court to award pre-judgment interest in such circumstances. See, e. g., Home Insurance Co. v. Olmstead, Miss. 1978, 355 So.2d 310; Commercial Union Insurance Co. v. Byrne, Miss. 1971, 248 So.2d 777. The judgment is REVERSED and REMANDED for a new trial. . The appraisal clause in each policy provided as follows: In case the insured and this Company shall fail to agree as to the actual cash value or the amount of loss, then, on the written demand of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected within twenty days of such demand. The appraisers shall first select a competent and disinterested umpire; and failing for fifteen days to agree upon such umpire, then, on request of the insured or this Company, such umpire shall be selected by a judge of a court of record in the state in which the property covered is located. The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences, only, to the umpire. An award in writing, so itemized, of any two when filed with this Company shall determine the amount of actual cash value and loss. Each appraiser shall be paid by the party selecting him and the expenses of appraisal and umpire shall be paid by the parties equally. . In the alternative, the Insurance Companies moved the court to submit to the" }, { "docid": "16492621", "title": "", "text": "did not act in bad faith in denying coverage in the Georgia action in light of the pending Missouri action. Consequently, we reverse the entry of judgment in favor of American Family for expenses incurred in connection with the Georgia action. C. Prejudgment Interest The jury included prejudgment interest in its award of attorney’s fees and expenses to American Family. Defendants argue that because these damages were not liquidated the jury could not award prejudgment interest. Under O.C.G.A. § 7-4-15, a claimant is entitled to statutory interest on liquidated damages. A sum is liquidated under Georgia law when it becomes fixed and certain. See generally Buchanan v. Bowman, 820 F.2d 359, 362 (11th Cir.1987). In this case, American Family’s demand for payment of attorney’s fees did not become liquidated until judgment, because the amount of attorney’s fees was not fixed and certain until that time. See Marathon Oil Co. v. Hollis, 167 Ga.App. 48, 305 S.E.2d 864 (1983). Consequently, the district court could not have awarded interest under section 7-4-15 in this case. Section 7-4-15 is not dispositive on the issue of prejudgment interest. Prejudgment interest on unliquidated damages in a breach of contract action is governed by O.C.G.A. § 13-6-13. The award of pre judgment interest under section 13-6-13 is a matter for the jury’s discretion; in contrast, an award of prejudgment interest is made by the judge as a matter of law under section 7-4-15. See United States on behalf of Delta Metals, Inc. v. R.M. Wells, 497 F.Supp. 541, 546 (M.D.Ga.1980); see generally Braner v. Southern Trust Insurance Co., 255 Ga. 117, 335 S.E.2d 547, 550 (1985). The district court properly allowed the jury to determine whether to award prejudgment interest on the unliqui-dated damages claimed by American Family as a result of Boston Old Colony’s and U.S. Fire’s breaches of their insurance contracts. See generally Casey Enterprises, Inc. v. American Hardware Mutual Insurance Co., 655 F.2d 598, 604 (5th Cir. Unit B 1981). The jury awarded prejudgment interest on each claim. This does not constitute error. D. Jury Instructions Boston Old Colony requested the district court" }, { "docid": "1454467", "title": "", "text": "v. Hancock Bank, 40 So.2d 742, 744 (Miss. 1949); Ketcham v. Mississippi Outdoor Display, 33 So.2d 300, 301 (Miss. 1948); see also, Miss. Code Ann. § 83-21-27 (1972). Bound by Erie, the district courts have accordingly held that an agent of a disclosed principal, acting within the authority of his agency, will not be personally liable where a third party brings an action for a breach of contract against the principal. Cone Mills Corp. v. Hurdle, 369 F.Supp. 426 (N.D.Miss.1974); Webbs v. Culberson, Heller & Norton, Inc., 357 F.Supp. 923 (N.D.Miss.1973); Chipman v. Lollar, 304 F.Supp. 440 (N.D.Miss.1969). Exceptions to this general rule have been made where plaintiff has made allegations which establish a separate and independent tort against the agent. Simpson v. M-P Enterprises, Inc., 252 So.2d 202, 207 (Miss. 1971); Pittman v. Home Indemnity, 411 So.2d 87 (Miss. 1982). THE COMPLAINT Inasmuch as it is a fundamental principle in the federal courts that subject matter jurisdiction must be determined by looking to the complaint as it existed at the time that the petition for removal was filed, In Re Carter, 618 F.2d 1093, 1101 (5th Cir.1980), it is proper for this Court to “pierce the pleadings” of the plaintiff to determine if the joinder was fraudulent. In other words, this Court ventures to see whether under any set of facts alleged in the petition, a claim against defendant Bethlehem can be asserted under Mississippi law. Keating v. Shell Chemical Co., supra, at 331. In the case sub judice, plaintiff’s complaint generally alleges and seeks damages from both defendants for breach of contract, gross negligence, and bad faith handling of a claim filed under a policy of fire insurance with defendant USF & G. The plaintiff’s complaint alleges that Bethlehem is an “agent, servant and employee” of USF & G. It also alleges that “the defendant insurance company had agreed and contracted to pay to plaintiff the amount of the requested increased coverage.” The complaint does not, however, establish even a semblance of an independent claim against Bethlehem aside from its acts as an agent of USF & G." }, { "docid": "2107068", "title": "", "text": "Co. v. Veal, 354 So.2d 239 (Miss.1977); Travelers Indemnity Co. v. Wetherbee, 368 So.2d 829 (Miss.1979); Reserve Life Insurance Co. v. McGee, 444 So.2d 803 (Miss.1983); Bankers Life and Casualty Co. v. Crenshaw, 483 So.2d 254 (Miss.1985); Southern United Life Insurance Co. v. Caves, 481 So.2d 764 (Miss.1985); National Life and Accident Insurance Co. v. Miller, 484 So.2d 329 (Miss.1985); Mississippi Farm Bureau Mutual Insurance Co. v. Todd, 492 So.2d 919 (Miss.1986); Blue Cross and Blue Shield of Mississippi, Inc. v. MAAS, 516 So.2d 495 (Miss.1987); Mutual Life Insurance Company of New York v. Wesson, 517 So.2d 521 (Miss.1987); Life Insurance Company of Mississippi v. Allen, 518 So.2d 1189 (Miss.1987). See Comment, 55 Miss.L.J. 485, 496 n. 55 (1985). Sitting in a diversity context, federal district courts have awarded punitive damages, or have had such awards affirmed, in the following cases: Richards v. Allstate Insurance Co., 693 F.2d 502 (5th Cir.1982); Henderson v. United States Fidelity & Guaranty Co., 695 F.2d 109 (5th Cir.1983) (Henderson II); Jones v. Benefit Trust Life Ins. Co., 617 F.Supp. 1542 (S.D.Miss.1985), affirmed in relevant part, 800 F.2d 1397 (5th Cir.1986). . In Maas, supra, a majority of the Mississippi Supreme Court agreed that ‘‘[w]hether such awards [are] considered as components of economic loss tort damages, or as [separate and distinct] awards required by other law, matters not.” 516 So.2d at 498. .In an opinion written by Judge Biggers, this court in Harrison observed that \"attorney’s fees should be allowed in insurance contract actions for an insurer’s wrongful denial of a claim, independent of any bad faith allegation.” 656 F.Supp. at 309 (emphasis added). See abo Donahoo v. State Farm Mutual Automobile Ins. Co., No. GC86-18-NB-O (N.D.Miss.1987) (unpublished opinion). Over the years, Justice Robertson has attempted to persuade a majority of his brethren on the Mississippi Supreme Court to either provide attorney’s fees to claimants who have prevailed on their contract claim, or establish an intermediate level of conduct which would entitle a claimant to relief short of punitive damages. See Blue Cross and Blue Shield of Mississippi v. Campbell, 466 So.2d 833, 847 (Miss.1984);" }, { "docid": "2107071", "title": "", "text": "\"bad faith” litigation confronting the courts. . As Justice Robertson indicated in his dissent in Crenshaw, \"The insurer, of course, is entitled to a reasonable period of time within which to investigate and process a claim. This is wholly consistent with the insurer’s duty to pay with reasonable promptness. I would hold that prejudgment interest on all first party insurance claims should begin to run thirty days following the insurer’s receipt of the proof of claim, unless the equities of a given case clearly indicate that the commencement date should be later.” 483 So.2d at 300-01. . As always, the court is mindful of its role under Erie. To the extent that the Mississippi Supreme Court has remained silent on the issue of prejudgment interest, the statements contained herein represent merely an “Erie -guess” as to what the high court would do if presented with the question. This approach is followed throughout this opinion in all areas where guidance has not been forthcoming or the law unambiguously stated. . Mere delay in investigating a claim will not support an award of punitive damages under Mississippi law unless it is (a) so unreasonable as to constitute an independent tort or (b) amounts to a constructive denial of the claim, made without an arguable reason and in bad faith. Tutor v. Ranger Insurance Co., 804 F.2d 1395, 1398-99 (5th Cir.1986) (applying Miss, law); Aetna Casualty and Surety Co. v. Day, 487 So.2d 830, 833 (Miss.1986). See also Reece v. State Farm Fire and Casualty Co., No. EC85-433-D-D (N.D.Miss.1987) (unpublished supplemental opinion dated Dec. 22, 1987). Most insurance companies, including Reserve Life, have enacted internal policy guidelines which give the insured a right to a prompt and objective investigation of his or her claim. . Later in this opinion, I note the failure of this case to “deter such conduct in the future.\" Indeed, the manager of the claim department of Reserve Life was not even familiar with the facts forming the basis for the punitive damage award in McGee. . Some commentators have implied that the holding in Bankers Life may only" }, { "docid": "16790782", "title": "", "text": "the losing party to be forced to pay prejudgment interest. See, e.g., Socony Mobil Oil Co. v. Texas Coastal & International, Inc., 559 F.2d 1008, 1014 (5th Cir.1977); American Zinc Co. v. Foster, 441 F.2d 1100, 1101 (5th Cir.), cert. denied sub nom. Ingalls Shipbuildings Division of Litton Systems, Inc. v. American Zinc Co., 404 U.S. 855, 92 S.Ct. 99, 30 L.Ed.2d 95 (1971). Ceja v. Mike Hooks, Inc., 690 F.2d 1191, 1196 (5th Cir.1982). However, the Circuit has further held: If the trial court does not make any mention of prejudgment interest in its judgment or its findings of fact and conclusions of law, then it is more difficult to infer that the trial court has found peculiar circumstances and decided to exercise the discretion that those circumstances create. Nonetheless, this court may make that inference, and is especially likely to do so when the record clearly discloses peculiar circumstances, or when the case is of a type in which compensation for the delay between injury and judgment has probably been taken into account in determining damages, [citations omitted]. But when no peculiar circumstances are disclosed on the face of the record, and the case is of a type in which peculiar circumstances are less likely to exist, we have reversed the judgment of the district court insofar as it fails to award prejudgment interest, [citations omitted]. We may, as. we did in Alcoa Steamship [v. Charles Ferran & Co., 443 F.2d 250], supra, simply modify the trial court’s judgment to award prejudgment interest or remand with directions to calculate and award prejudgment interest. Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724, 730 (5th Cir.1980). In the instant case, the district court makes no mention of prejudgment interest in regard to any of the parties involved. It follows, therefore, that there is no discussion of any “peculiar circumstances” which would justify the court’s denial of prejudgment interest. Taylor contends that he is owed prejudgment interest from both Milky Way and Chevron. Milky Way claims it is entitled to prejudgment interest from its insurers. LOS, and its compensation insurers," }, { "docid": "11448931", "title": "", "text": "Preliminarily, we must note that both issues in this case are controlled by Mississippi law. It is well established that in diversity cases in the Fifth Circuit “state law governs the measure of damages.” Murphy v. Georgia Pacific Corp., 628 F.2d 862 (5th Cir.1980), quoting Weakley v. Fishbach & Moore, Inc., 515 F.2d 1260, 1267 (5th Cir.1975). See also Culver v. Slater Boat Co., 688 F.2d 280, 289-90 (5th Cir.1982), en banc, relevant part reaff’d, 722 F.2d 114, 123 (5th Cir.1983). We have also specifically held that the question of prejudgment interest is controlled by state law. Vicon, Inc. v. CMI Corp., 657 F.2d 768, 776 (5th Cir.1981); Dunn v. Koehring Co., 546 F.2d 1193, 1201 (5th Cir.1977). Mrs. Smith notes that some confusion is engendered by one of our cases on the question whether state law controls the award of prejudgment interest. Nations v. Sun Oil, 695 F.2d 933, 939 n. 2 (5th Cir.1983). The footnote in Nations appears to indicate that the Fifth Circuit standard for federal cases would control a Mississippi workmen’s compensation case in determining the method for discounting. The footnote in question is dicta because the real issue the court was addressing in Nations was a conflict between jury instructions. Furthermore, we have clearly stated in Vi-con and Dunn that state law controls the award of prejudgment interest. We therefore follow the clear guide of Vicon and Dunn and apply Mississippi law in determining the award of prejudgment interest. Similarly, Mississippi law controls the subtraction of taxes from a damage award for future earnings because that reduction is a question of the measure of damages. A. Mississippi law is quite clear on the question whether prejudgment interest can be awarded for estimated earnings from the time of death to the time of trial. Under Mississippi law, “it is often stated that in the absence of statute or contract providing expressly therefor, or proof sufficient to support an award of punitive damages, there can be no recovery of attorney’s fees or prejudgment interest.” Stanton and Associates v. Bryant Construction Co., 464 So.2d 499, 502 (Miss.1985). Mrs." }, { "docid": "13748107", "title": "", "text": "occurs in the insurance context, where a property insurer pays off a claim by its insured and then pursues in its own behalf through conventional subrogation any claim the insured might have had against a third-party tortfeasor. .Without discussion of this issue, at least one court has taken no deduction for these amounts. See American Oil Co. v. M/T Lacon, 398 F.Supp. 1181, 1195 (S.D.Ga.1973), aff’d without published opinion, 518 F.2d 1405 (5th Cir.1974). . Ryan Walsh, 792 F.2d at 492-93 (citations omitted). . See Bunge, 630 F.2d at 1242-43 (reversing denial of prejudgment interest, where plaintiff never replaced or repaired its damaged dolphin); cf. United States v. Central Gulf Lines, Inc., 747 F.2d 315, 320 (5th Cir.1984) (upholding award of prejudgment interest for cargo loss, where government agency never replaced the cargo). This Fifth Circuit rule differs from the rule in some other circuits. See American Oil, 398 F.Supp. at 1196. . Ryan Walsh, 792 F.2d at 493 (citation omitted); see King Fisher, 724 F.2d at 1187 (citing further cases). Admittedly, as the cases cited by defendants show, the rule appears slightly different for personal injury claims, where prejudgment interest is not allowed on future damages (viz., future medical, future pain and suffering, and loss of future wages). See, e.g., Verdin v. C & B Boat Co., 860 F.2d 150, 158 (5th Cir.), reh’g denied mem., 862 F.2d 874 (5th Cir.1988). . Nunley, 863 F.2d at 1204. . Reeled Tubing, Inc. v. M/V Chad G, 794 F.2d 1026, 1028 (5th Cir.1986). . See Ryan Walsh, 792 F.2d at 493; In re M/V Vulcan, 553 F.2d 489, 490 (5th Cir.) (per curiam), cert. denied sub nom. Sabine Towing & Transportation Co. v. Zapata Ugland Drilling Co., 434 U.S. 855, 98 S.Ct. 175, 54 L.Ed.2d 127 (1977); Gulf Oil Corp. v. Panama Canal Co., 481 F.2d 561, 571 (5th Cir.1973); Mobil Oil Corp. v. Tug Pensacola, 472 F.2d 1175, 1176 (5th Cir.1973) (per curiam); see also Galveston Towing Co. v. Cuban Steamship Co., 195 F. 711, 713 (5th Cir.) (modifying interest award to run from date of collision instead of from" } ]

[ { "docid": "2851193", "title": "", "text": "Opinion PER CURIAM. PER CURIAM: The Merit Systems Protection Board (“MSPB” or “Board”) petitions for review of a decision and order entered by the Federal Labor Relations Authority (“FLRA” or “Authority”) requiring the Board to engage in collective bargaining over a proposal advanced by the MSPB Professional Association. The Association’s proposal calls for an extension of secondary assignment rights for bargaining unit employees in the event of a reduction in force. We hold that the proposal is inconsistent with applicable government-wide regulations and is therefore nonnegotiable. I. BaCKGROund A. Legal Framework Where a union has been recognized as the exclusive representative of employees of a federal agency, the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1988) (“FSLMRS”), imposes upon both agency management and the union a general obligation to negotiate in good faith over the conditions of employment of the represented employees. 5 U.S.C. §§ 7114, 7117. At the same time, the FSLMRS delimits the scope of a federal agency’s duty to bargain; an agency may not negotiate over proposed conditions of employment that are “inconsistent with any Federal law or any Government-wide rule or regulation.” Id. § 7117(a)(1). Under the Civil Service Reform Act of 1978, as amended, 5 U.S.C. §§ 1101-8913 (1988), of which the FSLMRS is a part, the Office of Personnel Management (“OPM”) is the lead personnel agency for civilian employees in the executive branch, charged by Congress with authority to issue government-wide regulations, to delegate its authority to other agencies, and to oversee federal personnel programs to ensure that OPM regulations are complied with. See 5 U.S.C. §§ 1103-1104, 1301-1302; S.Rep. No. 969, 95th Cong., 2d Sess. 5, reprinted in 1978 U.S.Code Cong. & Admin.News 2723, 2727-28. Pursuant to the requirements of the Act, 5 U.S.C. § 3502, OPM has promulgated regulations governing reductions in force. 5 C.F.R. Part 351 (1990). These regulations are binding on all federal agencies with employees in the competitive service, 5 U.S.C. § 1104(b)(1), generally apply to most civilian employees of the federal government, see 5 C.F.R. § 351.202, and are recognized by the Authority as government-wide regulations" } ]

[ { "docid": "3680020", "title": "", "text": "negotiability of union competitive area proposals. In Local 32, Am. Fed’n of Gov’t Employees, AFL-CIO v. FLRA, 774 F.2d 498 (D.C.Cir.1985) [hereinafter AFGE Li, the Authority below had held that a union proposal was outside an agency’s duty to negotiate because it would affect non-bargaining unit employees. In a different ease presenting similar facts, however, the Authority had held that a proposal defining competitive areas was within an agency’s duty to negotiate. This court noted the discrepancy between these holdings and remanded the case to the Authority to reconcile the apparent inconsistency. Id. at 499-500. On remand the Authority announced again that the union’s competitive area proposals did not fall within the Agency’s duty to negotiate. It arrived at this conclusion by balancing “the right of the union to negotiate over the conditions of employment of bargaining unit employees and the right of the agency to set the conditions of employment of nonbar-gaining unit employees.” American Fed’n of Gov’t Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 F.L.R.A. 478, 482 (1986). The union contested the Authority’s conclusions and its analysis in an appeal to this court. We again agreed with the union and remanded the case to the Authority. In doing so we concluded that the Authority’s use of a balancing test was inconsistent with the statute. AFGE II, 853 F.2d at 991. We reminded the Authority of the analogous relationship between the FSLMRS and the National Labor Relations Act and urged it to consider using the private sector’s “vitally affects” test in its further consideration of this question. Id. at 992; see Allied Chem. & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 179, 92 S.Ct. 383, 397-98, 30 L.Ed.2d 341 (1971). The “vitally affects” test has been used in the private sector to expand “the scope of mandatory bargaining subjects to' include issues directly relating to non-employees or other conditions [outside the bargaining unit], so long as a sufficient nexus with the employees’ interests can be shown.” Cherry Point, 952 F.2d at 1440 (quoting Charles J. Morris, The" }, { "docid": "3680018", "title": "", "text": "18 (1992), enforced sub nom. Department of Commerce v. FLRA 7 F.3d 243 (D.C.Cir.1993) [hereinafter National Weather Service]. In National Weather Service, the Authority held a competitive area bargaining proposal to be negotiable despite the effect it would have on management personnel. The Authority focused in that case on the union’s intent. Because the union did not intend to regulate the conditions of employment of management personnel, the proposal was negotiable. 44 F.L.R.A. at 28. The Union argued that National Weather Service required the Authority to hold that its proposal was negotiable. The Authority agreed with the Agency. After a careful analysis of relevant Authority and D.C. Circuit precedent, the Authority stated that there was no basis, either in the Statute or in precedent, for the “proposition that, in determining whether a proposal [is negotiable], it is appropriate to rely on what the union seeks to accomplish rather than what the proposal would, in fact, accomplish.” 51 F.L.R.A. 491, 1995 WL 649037, at *10 (1995). Rather, the exact opposite was true. Negotiability was determined based on a proposal’s actual, not its intended, effect. The Authority disavowed the contrary position it had taken in National Weather Service. Once this was established, the application to the facts in this case was easy. The Union’s proposal, if adopted, would determine the competitive areas for supervisors. An agency has no obligation to negotiate over proposals that directly implicate supervisory personnel. See, e.g., Cherry Point, 952 F.2d at 1442. The Union’s proposal was therefore outside the duty to bargain. The Authority recognized that this decision placed the Union in a “ ‘catch-22’ situation.” 51 F.L.R.A. 491, 1995 WL 649037, at *10. OPM regulations require that competitive areas be defined to include supervisors, yet agencies have no duty to negotiate over proposals that affect supervisors. The Union might thus never be able to negotiate over this important condition of employment. The Authority nevertheless dismissed the petition for review. This appeal followed. ANALYSIS This is not a new issue for this court. This is at least the fourth time that these two parties have clashed over the" }, { "docid": "3680015", "title": "", "text": "affected position may be able to prevail over less senior or less qualified employees who hold different positions but are within the same competitive area. American Fed’n of Gov’t Employees, Local 32, AFL-CIO v. FLRA 853 F.2d 986, 988 (D.C.Cir.1988) (footnotes omitted) [hereinafter AFGE If. How an agency’s competitive areas are defined affects which employees will retain their jobs in the event of a RIF. The definition of the Agency’s competitive areas is obviously an issue of great concern to the Union. Given this, the Union responded to the Agency’s proposed changes by advancing its own proposal. The Union’s proposal called for the Washington office to be divided into fewer competitive areas than did the Agency’s proposal. The Union’s proposal favored more senior and more qualified employees. The greater the number of other employees within a competitive area the more likely it will be that these employees will find juniors to displace in the event of a RIF. A week after receiving the Union’s proposal, the Agency asserted that its duty to bargain under the Statute did not extend to the Union’s competitive bargaining proposal. The Union appealed that decision to the Authority. See 5 U.S.C. 7117(c). The Agency argued to the Authority that the Union’s proposal was non-negotiable because, if accepted, it would determine the competitive areas for supervisory and managerial personnel. Under OPM regulations, “[a] competitive area must be defined solely in terms of an agency’s organizational unit(s) and geographical location, and it must include all employees-within the competitive area so defined.” 5 C.F.R. § 351.402(b) (emphasis added); see also U.S. Merit Sys. Protection Bd., 913 F.2d at 980 (defining “the competitive area to include only bargaining unit employees ... is clearly prohibited under OPM regulations”). A union, however, has no right to negotiate over the working conditions of supervisors. A union has the right to negotiate only for employees who are members of its bargaining unit. See 5 U.S.C. § 7114(a)(1). Supervisors may not belong to any bargaining unit. 5 U.S.C. § 7112(b)(1). An agency therefore has no obligation to negotiate over any proposal that directly implicates" }, { "docid": "13466819", "title": "", "text": "Opinion for the Court filed by Circuit Judge MIKVA. Dissenting Opinion filed by Circuit Judge SENTELLE. MIKVA, Circuit Judge: This case reviews a determination by the Federal Labor Relations Authority (“FLRA” or “Authority”) that a union proposal is negotiable. AFGE, AFL-CIO, Local 32 and Office of Personnel Management, 29 F.L.R.A. (No. 40) 380 (1987). The case presents the question whether a government-wide regulation that is a mere restatement of management prerogatives established by the Federal Labor-Management Relations statute, 5 U.S.C. §§ 7101-7135 (1982 & Supp.1988) (“statute”), can serve as a greater bar to bargaining than the statutory prerogatives themselves. This case, in other words, is the “anomalous situation” that we left “for another day” in AFGE, Local 2782 v. FLRA, 803 F.2d 737, 742 (D.C.Cir.1986) (“Local 2782”). We now hold that a government-wide rule or regulation that merely restates a statutorily guaranteed prerogative of management cannot render a bargaining proposal nonnegotiable where the underlying statutory prerogative does not do so. I. Introduction The American Federation of Government Employees, AFL-CIO, Local 32 (“union”) made a proposal (“Proposal 2”) which provided: Reemployment eligibles (employees who are separated through reduction in force [RIF]) will be reemployed at former or lower grades in positions for which they qualify by being selected in preference to applicants from all other sources. 29 F.L.R.A. at 389. The Office of Personnel Management (“OPM” or “agency”) refused to bargain, arguing that Proposal 2 interfered with its right to fill positions from “any * * * appropriate source” under section 7106(a)(2)(C) of the statute. OPM also pointed to Requirement 4 of subchapter 1-4, chapter 335 of the Federal Personnel Manual (“FPM”), which lists merit promotion requirements for federal employees covered by the FPM: Selection procedures will provide for management’s right to select or not select from among a group of best qualified candidates. They will also provide for management’s right to select from other appropriate sources, such as reemployment priority lists, reinstatement, transfer, handicapped, or Veterans Readjustment eligibles or those within reach on an appropriate OPM certificate. In deciding which source or sources to use, agencies have an obligation to" }, { "docid": "14806904", "title": "", "text": "the representative by a majority of employees in an appropriate unit as determined by the Authority. 5 U.S.C. § 7111(a). Thereupon, the agency and union have a duty to meet and negotiate in good faith for the purpose of arriving at a collective bargaining agreement. 5 U.S.C. § 7114(a)(4). The duty to bargain does not compel either party to agree to a proposal. 5 U.S.C. § 7103(a)(12). In addition, the duty to bargain does not cover those matters over which an agency retains decision-making authority, e.g., reductions in grade, suspensions, removals, and other disciplinary actions. 5 U.S.C. § 7106(a). However, 5 U.S.C. § 7106(b)(2) permits an agency and a labor organization to negotiate the procedures that an agency will observe in exercising the decision-making authority. Furthermore, the scope of the duty to bargain extends to conditions of employment, i.e., personnel policies, practices and matters affecting working conditions of unit employees, unless the matters proposed for bargaining are inconsistent with federal law or government-wide rules or regulations, or with agency regulations deemed by the Authority to fill a “compelling need.” 5 U.S.C. §§ 7117(a)(1), 7114(b)(2), and 7103(a)(14). When a labor organization wishes to subject a particular matter to collective bargaining, it submits a proposal to the appropriate agency. If the agency asserts that the union’s proposal involves a matter not within the agency’s duty to bargain and, accordingly, refuses to bargain with respect to the proposal, as did the Guard in the present petition, the union may appeal to the Authority. 5 U.S.C. § 7117(c)(1). The Authority must then decide whether the union’s proposal is negotiable. If the Authority determines it is, the agency must either negotiate or seek judicial review. 5 U.S.C. § 7123(a). In a separate section entitled “Grievance Procedures,” the Labor-Management Act states that collective bargaining agreements shall provide procedures for the settlement of grievances that, unless otherwise agreed by the parties, must include a provision for binding arbitration, as the final step, to be invoked by either the exclusive representative or the agency. 5 U.S.C. § 7121(a), (b)(3)(C). Where grievances arise under other personnel systems applicable to" }, { "docid": "3680025", "title": "", "text": "duty to negotiate. In IFPTE and in its opinion in this ease, however, the Authority relied not on the union’s expressed intent, but rather on the effect that the proposal would have on the working conditions of supervisory personnel. We are not suggesting, however, that the Authority has been arbitrary or capricious. Rather, as we noted above, the Authority expressly rejected its National Weather Service reasoning in its decision in this case. See op. at p. 813, supra (citing 51 F.L.R.A. 491, 1995 WL 649037, at *10 (1995)). The Union argues to us now that the Authority’s approach in National Weather Service is correct. It reads our use of the terms “purport” and “seek” in Cherry Point to require the Authority to determine the negotiability of a proposal by looking to the intent of the union as it is expressed in the language of the proposal itself. In the Union’s view, its proposal does not say anything about the working conditions of supervisory personnel, and therefore cannot, be said to “purport” or “seek” to regulate their working conditions or “directly implicate” them. The Union contends that its proposal is therefore negotiable so long as it “vitally affects” the working conditions of members of its bargaining unit. Due to the central importance of the RIF process, the Union maintains that its competitive area proposal clearly meets that standard and is within the Agency’s duty to negotiate. The Authority disagrees. It rejects as contrary to statute, common sense, and Cherry Point the Union’s “myopic” focus on the language of the proposal. It interprets Cherry Point to mean that a union proposal that “preelusively determines” or “mandate[s]” working conditions for supervisory personnel is outside the scope of the agency’s duty to negotiate. In this ease the union proposed a redefinition of OPM’s competitive areas. OPM regulations require that competitive areas be defined so as to include all employees within the area. 5 C.F.R. § 351.402(b). Supervisors work within the competitive area that the union proposes to define. Therefore, the Authority contends that the union’s proposal “purports” to regulate the working conditions of supervisors" }, { "docid": "3680014", "title": "", "text": "of other bargaining units and supervisory personnel.” United States Dep’t of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA 952 F.2d 1434, 1443 (D.C.Cir.1992) [hereinafter Cherry Point]. This case requires us to apply the quoted language from Cherry Point. The Union is the exclusive representative of a unit of employees of the OPM working at its central office in Washington, D.C. On May 2,1995, OPM informed the Union that it intended to revise its policies regarding reductions in force (“RIF”). Among other things, the Agency proposed to modify the “competitive areas” that would be used by the Agency in the event of a RIF. The concept of a “competitive area” is an important one in the field of federal labor relations. As we have previously explained, a competitive area is simply a grouping of employees within an agency, according to-their geographical or organizational location, who compete for job retention when a particular position is abolished or some other adverse action constituting a RIF is imposed. In such circumstances, an employee holding the affected position may be able to prevail over less senior or less qualified employees who hold different positions but are within the same competitive area. American Fed’n of Gov’t Employees, Local 32, AFL-CIO v. FLRA 853 F.2d 986, 988 (D.C.Cir.1988) (footnotes omitted) [hereinafter AFGE If. How an agency’s competitive areas are defined affects which employees will retain their jobs in the event of a RIF. The definition of the Agency’s competitive areas is obviously an issue of great concern to the Union. Given this, the Union responded to the Agency’s proposed changes by advancing its own proposal. The Union’s proposal called for the Washington office to be divided into fewer competitive areas than did the Agency’s proposal. The Union’s proposal favored more senior and more qualified employees. The greater the number of other employees within a competitive area the more likely it will be that these employees will find juniors to displace in the event of a RIF. A week after receiving the Union’s proposal, the Agency asserted that its duty to bargain under the" }, { "docid": "3680017", "title": "", "text": "the working conditions of supervisors. Allowing the Union to force the Agency to negotiate over this proposal would violate the basic principle of labor law that a union represents employees who are members of its bargaining unit, and those employees only. Cherry Point, 952 F.2d at 1442. The Agency relied on the Authority’s opinion in International Fed’n of Profl and Technical Eng’rs and U.S. Dep’t of the Navy Marine Corps Sec. Force Battalion Pac., 47 F.L.R.A. 1086 (1993) [hereinafter IFPTE]. Because the Union’s proposal necessarily defined the competitive area for supervisory personnel, it was outside the Agency’s duty to negotiate. The Union countered by arguing that its proposal was negotiable because “it is not AFGE 32’s intention to determine the competitive area for [supervisory] personnel.” The proposal affected supervisory personnel only because OPM regulations required that competitive areas include all employees within the area. The Union relied on the Authority’s decision in National Weather Service Employees Org. and U.S. Dep’t of Commerce Nat’l Oceanic and Atmospheric Admin., Nat’l Weather Serv., Silver Spring, Maryland, 44 F.L.R.A. 18 (1992), enforced sub nom. Department of Commerce v. FLRA 7 F.3d 243 (D.C.Cir.1993) [hereinafter National Weather Service]. In National Weather Service, the Authority held a competitive area bargaining proposal to be negotiable despite the effect it would have on management personnel. The Authority focused in that case on the union’s intent. Because the union did not intend to regulate the conditions of employment of management personnel, the proposal was negotiable. 44 F.L.R.A. at 28. The Union argued that National Weather Service required the Authority to hold that its proposal was negotiable. The Authority agreed with the Agency. After a careful analysis of relevant Authority and D.C. Circuit precedent, the Authority stated that there was no basis, either in the Statute or in precedent, for the “proposition that, in determining whether a proposal [is negotiable], it is appropriate to rely on what the union seeks to accomplish rather than what the proposal would, in fact, accomplish.” 51 F.L.R.A. 491, 1995 WL 649037, at *10 (1995). Rather, the exact opposite was true. Negotiability was determined based" }, { "docid": "3680030", "title": "", "text": "proposal, if implemented, would therefore govern the competitive area not only for members of the Union’s bargaining unit, but also for supervisory personnel. As the Cherry Point court made clear, such a proposal is outside an agency’s duty to negotiate. The Authority’s decision was therefore correct. The Union emphasizes repeatedly that it does not intend to define the competitive area for supervisors. Its proposal has this effect only because of the necessary operation of 5 C.F.R. § 351.402(b). The Authority noted that this placed the Union in a difficult position, where it might never be able to force the Agency to bargain bilaterally over the definition of competitive areas. 51 F.L.R.A. 491,1995 WL 649037, at *10. We acknowledge that this ruling puts the Union in a difficult position. Difficult though that position may be, it seems to be contemplated by the FSLMRS. Under § 7117(a)(1) the duty to bargain in good faith does not extend to proposals that are inconsistent with federal law or government-wide regulations. This statutory provision appears to give the government the ability to make certain categories of proposals non-negotiable by adopting government-wide regulations covering those subjects. This is essentially what the government did here. The FSLMRS gives the Union the right to negotiate only for employees who are members of its bargaining unit. 5 U.S.C. § 7114(a)(1). Supervisors may not belong to any bargaining unit. See 5 U.S.C. § 7112(b)(1). Because of 5 C.F.R. § 351.402(b), however, the Union’s proposal will determine competitive areas for supervisors as well as for members of the Union’s bargaining unit. The Union’s proposal therefore exceeds the negotiating authority that it is given under the FSLMRS. It is inconsistent with federal law' and outside the Agency’s duty to negotiate. See AFGE III, 905 F.2d at 436 (Silberman, J., concurring). CONCLUSION If adopted, the Union’s proposal would govern the working conditions of supervisors at the OPM. It is therefore outside the Agency’s duty to negotiate. We deny the Union’s petition for review. . We also denied the petition of the Nuclear Regulatory Commission, co-petitioner in the case. . Note that the Union" }, { "docid": "11286669", "title": "", "text": "rights under § 7106(a). At the behest of the Union, the General Counsel of the Federal Labor Relations Authority (“FLRA” or “Authority”) issued an unfair labor complaint challenging the Agency head’s disapproval of the Agreement, but the complaint was ultimately dismissed by the FLRA on the ground that the Agreement infringed upon management’s right to determine internal security procedures. See National Guard Bureau Alexandria, Virginia, 45 F.L.R.A. No. 43 (July 15, 1992) (“FLRA op.”) reprinted in Appendix to Petitioner’s Brief (“A.”) 5. The Union now petitions for review of the FLRA’s decision. Because we agree with the Union’s argument, we grant the petition and reverse. I. BACKGROUND The Federal Service Labor-Management Relations Act (“FSLMRA” or “Act”), 5 U.S.C. §§ 7101-35 (1988), which establishes the framework for collective bargaining between federal civil service employees and their respective agencies governs this dispute. Under the Act, agencies are required to “negotiate in good faith” over “conditions of employment,” id. at §§ 7114(a)(4), 7102, which include “personnel policies, practices, and matters ... affecting working conditions” but not matters “to the extent [they] are specifically provided for by Federal statute,” id. at § 7103(a)(14). The Act emphasizes that the duty to bargain in good faith does not extend to matters “inconsistent with any Federal law or any Government-wide rule or regulation.” Id. at § 7117(a)(1). Nor does the duty to bargain extend to matters which are the subject of an agency-wide regulation, unless the Authority determines that “no compelling need ... exists for the rule or regulation.” Id. at § 7117(a)(2). In an effort to balance collective bargaining rights of employees against the need to secure the effective administration of government, the Act also shields certain management rights from the negotiation process. Section 7106(a) provides that “[s]ubject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency ... to determine the mission, budget, organization, number of employees, and internal security practices of the agency.” Read in isolation, § 7106(a) would keep all management decisions listed in that subsection off the bargaining table. However, as" }, { "docid": "3680013", "title": "", "text": "Opinion for the Court filed by Circuit Judge SENTELLE. SENTELLE, Circuit Judge: This is a petition for review of a Federal Labor Relations Authority (“FLRA” or “Authority”) decision that a bargaining proposal from Local 32 of the American Federation of Government Employees (“Union”) is outside the Office of Personnel Management’s (“OPM” or “Agency”) duty to negotiate. The Authority found the proposal non-negotiable because it directly implicates and purports to regulate the working conditions of supervisors. Agreeing with the Authority, we deny the petition. BACKGROUND Where a union is the exclusive representative of employees of a federal agency, the Federal Service Labor-Management Relations Statute (“Statute” or “FSLMRS”) imposes upon the agency a general obligation to negotiate in good faith over the conditions of employment of the represented employees. 5 U.S.C. §§ 7114, 7117; U.S. Merit Sys. Protection Bd. v. FLRA 913 F.2d 976, 977 (D.C.Cir.1990). The scope of the agency’s obligation to bargain, however, is limited. The agency need not negotiate, inter alia, over a proposal that “seek[s] to regulate the conditions of employment of members of other bargaining units and supervisory personnel.” United States Dep’t of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA 952 F.2d 1434, 1443 (D.C.Cir.1992) [hereinafter Cherry Point]. This case requires us to apply the quoted language from Cherry Point. The Union is the exclusive representative of a unit of employees of the OPM working at its central office in Washington, D.C. On May 2,1995, OPM informed the Union that it intended to revise its policies regarding reductions in force (“RIF”). Among other things, the Agency proposed to modify the “competitive areas” that would be used by the Agency in the event of a RIF. The concept of a “competitive area” is an important one in the field of federal labor relations. As we have previously explained, a competitive area is simply a grouping of employees within an agency, according to-their geographical or organizational location, who compete for job retention when a particular position is abolished or some other adverse action constituting a RIF is imposed. In such circumstances, an employee holding the" }, { "docid": "3680022", "title": "", "text": "Developing Labor Law 765 (2d ed.1983)) (alteration in original). Accepting our suggestion, the Authority began to use the “vitally affects” test to determine the negotiability of union proposals. Applying that test to the proposals involved in AFGE I and AFGE II, the Authority found that the proposals were negotiable because they “vitally affect[ed]” the working conditions of employees in the bargaining unit. American Fed’n of Gov’t Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 F.L.R.A. 335, 338-39 (1988). The OPM appealed the decision to this court, challenging both the result and the Authority’s use of the “vitally affects” test. We denied its petition. We did not, however, consider whether the “vitally affects” test had been appropriately applied. We held that the law of the case doctrine and justicia-bility concerns barred us from considering the challenge. United States Office of Personnel Management v. FLRA, 905 F.2d 430, 433-35 (D.C.Cir.1990) [hereinafter AFGE IIP. The Authority therefore went on resolving negotiability disputes by asking whether the proposal “vitally affected” the working conditions of employees in the relevant bargaining unit. See, e.g., American Fed’n of Gov’t Employees, Council of Marine Corps Locals and Dep’t of the Navy, U.S. Marine Corps, 35 F.L.R.A. 1023, 1030-33 (1990). The appropriateness of this practice went unre-viewed until this court considered the question in Cherry Point. In Cherry Point, the Authority applied the “vitally affects” test to proposals concerning promotion practices and parking policy at a military base. The Authority found the proposals to be negotiable and the Navy brought a petition challenging the Authority’s “adoption, construction and application” of the “vitally affects” test. Cherry Point, 952 F.2d at 1436. We approved the Authority’s decision to adopt the “vitally affects” test, but held that the Authority’s construction and application of the test were flawed. Id. at 1439. Contrary to the Authority’s practice, the “vitally affects” test is applicable only when the subject of the proposal is outside the scope of mandatory bargaining. Id. at 1440. In addition, and of greater relevance for this case, we also held that the vitally affects test' is not applicable if a" }, { "docid": "13471923", "title": "", "text": "“means of performing work,” and as such were excepted from the Bureau’s statutory duty to bargain. 5 U.S.C. § 7106(b)(1). Because we conclude that the Authority’s determination was neither arbitrary nor capricious and was supported by substantial evidence, we deny the petition for review. I. Background A. The Statute and the Prevailing FLRA Interpretation of It We introduce this knotty problem by laying out the relevant substantive legal standards governing federal service labor-management relations. Once employees in a unit of the federal government have chosen by majority vote to be represented by a particular labor organization, that labor organization becomes the exclusive bargaining representative of the unit employees. 5 U.S.C. § 7111(a). The agency is required by the FSLMRS to negotiate in good faith with that labor organization over “conditions of employment,” except for those particular matters that are excluded from the duty to bargain by federal law or government-wide rules or regulations. New York Council, Ass’n of Civilian Technicians v. FLRA, 757 F.2d 502, 508 (2d Cir.), cert. denied, 474 U.S. 846, 106 S.Ct. 137, 88 L.Ed.2d 113 (1985) (“ACT”); 5 U.S.C. §§ 7103(a)(12), 7114(a)(4), 7117(a). The term “conditions of employment” is defined broadly to include “personnel policies, practices, and matters ... affecting working conditions,” 5 U.S.C. § 7103(a)(14). If an agency refuses to negotiate in good faith with an exclusive bargaining representative as to matters covered by the duty to bargain, the agency is guilty of an unfair labor practice. 5 U.S.C. § 7116(a)(1), (a)(5). But there are certain matters excluded from the duty to bargain; in particular, the FSLMRS contains a “management rights” provision. 5 U.S.C. § 7106. Section 7106(a) lists matters over which an agency is not permitted to bargain. Section 7106(b)(1) sets out matters over which bargaining may take place “at the election of the agency.” Included in the latter category are decisions concerning the “methods, and means of performing work.” 5 U.S.C. § 7106(b)(1). As to these decisions, the agency is permitted but not required to negotiate with the labor organization. Id.; see American Federation of Gov’t Employees, Local 3013 v. FLRA, 762 F.2d" }, { "docid": "3680019", "title": "", "text": "on a proposal’s actual, not its intended, effect. The Authority disavowed the contrary position it had taken in National Weather Service. Once this was established, the application to the facts in this case was easy. The Union’s proposal, if adopted, would determine the competitive areas for supervisors. An agency has no obligation to negotiate over proposals that directly implicate supervisory personnel. See, e.g., Cherry Point, 952 F.2d at 1442. The Union’s proposal was therefore outside the duty to bargain. The Authority recognized that this decision placed the Union in a “ ‘catch-22’ situation.” 51 F.L.R.A. 491, 1995 WL 649037, at *10. OPM regulations require that competitive areas be defined to include supervisors, yet agencies have no duty to negotiate over proposals that affect supervisors. The Union might thus never be able to negotiate over this important condition of employment. The Authority nevertheless dismissed the petition for review. This appeal followed. ANALYSIS This is not a new issue for this court. This is at least the fourth time that these two parties have clashed over the negotiability of union competitive area proposals. In Local 32, Am. Fed’n of Gov’t Employees, AFL-CIO v. FLRA, 774 F.2d 498 (D.C.Cir.1985) [hereinafter AFGE Li, the Authority below had held that a union proposal was outside an agency’s duty to negotiate because it would affect non-bargaining unit employees. In a different ease presenting similar facts, however, the Authority had held that a proposal defining competitive areas was within an agency’s duty to negotiate. This court noted the discrepancy between these holdings and remanded the case to the Authority to reconcile the apparent inconsistency. Id. at 499-500. On remand the Authority announced again that the union’s competitive area proposals did not fall within the Agency’s duty to negotiate. It arrived at this conclusion by balancing “the right of the union to negotiate over the conditions of employment of bargaining unit employees and the right of the agency to set the conditions of employment of nonbar-gaining unit employees.” American Fed’n of Gov’t Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 F.L.R.A. 478, 482 (1986). The union" }, { "docid": "3680026", "title": "", "text": "their working conditions or “directly implicate” them. The Union contends that its proposal is therefore negotiable so long as it “vitally affects” the working conditions of members of its bargaining unit. Due to the central importance of the RIF process, the Union maintains that its competitive area proposal clearly meets that standard and is within the Agency’s duty to negotiate. The Authority disagrees. It rejects as contrary to statute, common sense, and Cherry Point the Union’s “myopic” focus on the language of the proposal. It interprets Cherry Point to mean that a union proposal that “preelusively determines” or “mandate[s]” working conditions for supervisory personnel is outside the scope of the agency’s duty to negotiate. In this ease the union proposed a redefinition of OPM’s competitive areas. OPM regulations require that competitive areas be defined so as to include all employees within the area. 5 C.F.R. § 351.402(b). Supervisors work within the competitive area that the union proposes to define. Therefore, the Authority contends that the union’s proposal “purports” to regulate the working conditions of supervisors and is outside the Agency’s duty to negotiate. The Authority is correct. All the Union has to offer in support of its position is a strained interpretation of the Cherry Point court’s use of the word “purports.” Its interpretation is easily rejected. Its most obvious flaw is that it is completely counter to the approach we took in Cherry Point itself. In Cherry Point we focused, not on the language that the union used in crafting its proposal, but on the effect that the union proposal would have if the agency accepted it. We held that the proposals in question in Cherry Point were nonnegotiable. We . did not base our holdings on the fact that the union proposals, if accepted, would have some effect on the working conditions of supervisors or members of other bargaining units. Nearly every bargaining proposal, if accepted, will have some effect on non-unit personnel. We found that the union’s proposals were non-negotiable because, if accepted, they would govern the working conditions of supervisors and employees in other bargaining units." }, { "docid": "3680021", "title": "", "text": "contested the Authority’s conclusions and its analysis in an appeal to this court. We again agreed with the union and remanded the case to the Authority. In doing so we concluded that the Authority’s use of a balancing test was inconsistent with the statute. AFGE II, 853 F.2d at 991. We reminded the Authority of the analogous relationship between the FSLMRS and the National Labor Relations Act and urged it to consider using the private sector’s “vitally affects” test in its further consideration of this question. Id. at 992; see Allied Chem. & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 179, 92 S.Ct. 383, 397-98, 30 L.Ed.2d 341 (1971). The “vitally affects” test has been used in the private sector to expand “the scope of mandatory bargaining subjects to' include issues directly relating to non-employees or other conditions [outside the bargaining unit], so long as a sufficient nexus with the employees’ interests can be shown.” Cherry Point, 952 F.2d at 1440 (quoting Charles J. Morris, The Developing Labor Law 765 (2d ed.1983)) (alteration in original). Accepting our suggestion, the Authority began to use the “vitally affects” test to determine the negotiability of union proposals. Applying that test to the proposals involved in AFGE I and AFGE II, the Authority found that the proposals were negotiable because they “vitally affect[ed]” the working conditions of employees in the bargaining unit. American Fed’n of Gov’t Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 F.L.R.A. 335, 338-39 (1988). The OPM appealed the decision to this court, challenging both the result and the Authority’s use of the “vitally affects” test. We denied its petition. We did not, however, consider whether the “vitally affects” test had been appropriately applied. We held that the law of the case doctrine and justicia-bility concerns barred us from considering the challenge. United States Office of Personnel Management v. FLRA, 905 F.2d 430, 433-35 (D.C.Cir.1990) [hereinafter AFGE IIP. The Authority therefore went on resolving negotiability disputes by asking whether the proposal “vitally affected” the working conditions of employees in the" }, { "docid": "13471922", "title": "", "text": "Opinion for the Court filed by Chief Judge WALD. WALD, Chief Judge: Reduced to its bare essentials, this case decides whether a local union can force the Bureau of Prisons to bargain over the proposed imposition of a requirement that guards wear neckties (and, in some cases, blazers) on the job. Local 2441 of the American Federation of Government Employees (“AFGE” or the “Union”) petitions this court for review of an order of the Federal Labor Relations Authority (“FLRA” or the “Authority”) dismissing an unfair labor practice charge against the United States Department of Justice, Bureau of Prisons (the “Bureau”). The charge, brought by the General Counsel of the Authority, alleged that the Bureau had violated §§ 7116(a)(1) and (a)(5) of the Federal Service Labor-Management Relations Statute (“FSLMRS” or the “statute”) by refusing to negotiate with the Union over the Bureau’s proposed changes in uniform for correctional officers at the Federal Correctional Institute in Morgantown, West Virginia (“FCI-Morgantown”). In dismissing the unfair labor practice charge, the Authority concluded that the Bureau’s uniform changes involved a “means of performing work,” and as such were excepted from the Bureau’s statutory duty to bargain. 5 U.S.C. § 7106(b)(1). Because we conclude that the Authority’s determination was neither arbitrary nor capricious and was supported by substantial evidence, we deny the petition for review. I. Background A. The Statute and the Prevailing FLRA Interpretation of It We introduce this knotty problem by laying out the relevant substantive legal standards governing federal service labor-management relations. Once employees in a unit of the federal government have chosen by majority vote to be represented by a particular labor organization, that labor organization becomes the exclusive bargaining representative of the unit employees. 5 U.S.C. § 7111(a). The agency is required by the FSLMRS to negotiate in good faith with that labor organization over “conditions of employment,” except for those particular matters that are excluded from the duty to bargain by federal law or government-wide rules or regulations. New York Council, Ass’n of Civilian Technicians v. FLRA, 757 F.2d 502, 508 (2d Cir.), cert. denied, 474 U.S. 846, 106 S.Ct." }, { "docid": "3680023", "title": "", "text": "relevant bargaining unit. See, e.g., American Fed’n of Gov’t Employees, Council of Marine Corps Locals and Dep’t of the Navy, U.S. Marine Corps, 35 F.L.R.A. 1023, 1030-33 (1990). The appropriateness of this practice went unre-viewed until this court considered the question in Cherry Point. In Cherry Point, the Authority applied the “vitally affects” test to proposals concerning promotion practices and parking policy at a military base. The Authority found the proposals to be negotiable and the Navy brought a petition challenging the Authority’s “adoption, construction and application” of the “vitally affects” test. Cherry Point, 952 F.2d at 1436. We approved the Authority’s decision to adopt the “vitally affects” test, but held that the Authority’s construction and application of the test were flawed. Id. at 1439. Contrary to the Authority’s practice, the “vitally affects” test is applicable only when the subject of the proposal is outside the scope of mandatory bargaining. Id. at 1440. In addition, and of greater relevance for this case, we also held that the vitally affects test' is not applicable if a union proposal “directly implicated,” “purports to regulate,” or “seek[s] to regulate” the working conditions of supervisory personnel or members of other bargaining units. Id. at 1441-43. Such proposals are always non-negotiable. The present case requires us to expound on this aspect of Cherry Point. In order to determine the negotiability of the union’s proposal, we must first ascertain whether it “directly implicates,” “purports to regulate,” or “seeks to regulate” the working conditions of supervisors. If it does, the proposal is outside the Agency’s duty to negotiate. We note at the outset that the Authority has not been consistent in its application of Cherry Point. In National Weather Service, the Authority focused on the union’s intent in determining whether the proposal “purported” to regulate the working conditions of supervisory personnel. If the effect on supervisors was a result of the operation of a federal regulation rather than the result of the union’s intent, the Agency could not claim that the proposal “purported” to regulate the working conditions of supervisors and was for that reason outside the" }, { "docid": "3680016", "title": "", "text": "Statute did not extend to the Union’s competitive bargaining proposal. The Union appealed that decision to the Authority. See 5 U.S.C. 7117(c). The Agency argued to the Authority that the Union’s proposal was non-negotiable because, if accepted, it would determine the competitive areas for supervisory and managerial personnel. Under OPM regulations, “[a] competitive area must be defined solely in terms of an agency’s organizational unit(s) and geographical location, and it must include all employees-within the competitive area so defined.” 5 C.F.R. § 351.402(b) (emphasis added); see also U.S. Merit Sys. Protection Bd., 913 F.2d at 980 (defining “the competitive area to include only bargaining unit employees ... is clearly prohibited under OPM regulations”). A union, however, has no right to negotiate over the working conditions of supervisors. A union has the right to negotiate only for employees who are members of its bargaining unit. See 5 U.S.C. § 7114(a)(1). Supervisors may not belong to any bargaining unit. 5 U.S.C. § 7112(b)(1). An agency therefore has no obligation to negotiate over any proposal that directly implicates the working conditions of supervisors. Allowing the Union to force the Agency to negotiate over this proposal would violate the basic principle of labor law that a union represents employees who are members of its bargaining unit, and those employees only. Cherry Point, 952 F.2d at 1442. The Agency relied on the Authority’s opinion in International Fed’n of Profl and Technical Eng’rs and U.S. Dep’t of the Navy Marine Corps Sec. Force Battalion Pac., 47 F.L.R.A. 1086 (1993) [hereinafter IFPTE]. Because the Union’s proposal necessarily defined the competitive area for supervisory personnel, it was outside the Agency’s duty to negotiate. The Union countered by arguing that its proposal was negotiable because “it is not AFGE 32’s intention to determine the competitive area for [supervisory] personnel.” The proposal affected supervisory personnel only because OPM regulations required that competitive areas include all employees within the area. The Union relied on the Authority’s decision in National Weather Service Employees Org. and U.S. Dep’t of Commerce Nat’l Oceanic and Atmospheric Admin., Nat’l Weather Serv., Silver Spring, Maryland, 44 F.L.R.A." }, { "docid": "4075183", "title": "", "text": "least arguably inconsistent, in result and rationale, with the decision the IRS challenges here. See American Federation of Government Employees, 8 FLRA 347 (1982), petition for review pending on other grounds, No. 82-1622 (D.C.Cir. filed June 3,1982). To avoid uncertainty and confusion in an area significant to agencies and their employees, and to afford the FLRA an opportunity to provide more secure guidance, we remand the case so that the Authority may address the Service’s now precisely stated objections. I. Background A. Statutory Duty to Bargain The Federal Service Labor-Management Relations Act accords federal employees an encompassing right “to engage in collective bargaining [through representatives chosen by them] with respect to conditions of employment.” 5 U.S.C. § 7102(2). See also id. §§ 7103(a)(12) (“collective bargaining” defined) & 7103(a)(14) (“conditions of employment” defined). Federal agencies have a corresponding duty “[to] negotiate in good faith [with the exclusive representative of their employees] for the purposes of arriving at a collective bargaining agreement.” Id. § 7114(a)(4). See also id. § 7114(b) (obligations included in “duty to negotiate in good faith”). With several exceptions stated in the Act, the agency’s expansive obligation to bargain includes “matters which are the subject of ... [an agency] rule or regulation.” Id. § 7117(a)(1). The exception relevant here is the major one the Act specifies, the “management rights” clause set out in section 7106(a). The “management rights” clause exempts from negotiation, inter alia, agency determinations about its “mission, budget, organization, number of employees,” and, of concern in this case, “internal security practices.” Id. § 7106(a)(1). While “management rights” themselves are nonnegotiable, bargaining is nonetheless authorized on “procedures which ... the agency will observe in exercising [its nonbargainable prerogatives].” Id. § 7106(b)(2). If an agency asserts that a matter proposed for bargaining is nonnegotiable, the employees’ representative may ask the FLRA to resolve the issue. Id. §§ 7105(a)(2)(E) & 7117(c); see 5 C.F.R. pt. 2424 (1982) (procedures for Authority resolution of negotiability issues). The FLRA may order an agency to bargain in good faith on a proposal, 5 C.F.R. § 2424.10(b), but it may not “compel either party to" } ]

[ { "docid": "22660664", "title": "", "text": "the Fifth Circuit’s holding in a similar ease that the wearing of symbols like the armbands cannot be prohibited unless it “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.” Burnside v. Byars, 363 F. 2d 744, 749 (1966). On appeal, the Court of Appeals for the Eighth Circuit considered the case en banc. The court was equally divided, and the District Court’s decision was accordingly affirmed, without opinion. 383 F. 2d 988 (1967). We granted certiorari. 390 U.S. 942 (1968). I. The District Court recognized that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. See West Virginia v. Barnette, 319 U.S. 624 (1943); Stromberg v. California, 283 U.S. 359 (1931). Cf. Thornhill v. Alabama, 310 U.S. 88 (1940); Edwards v. South Carolina, 372 U.S. 229 (1963); Brown v. Louisiana, 383 U.S. 131 (1966). As we shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to “pure speech” which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. Cf. Cox v. Louisiana, 379 U.S. 536, 555 (1965); Adderley v. Florida, 385 U.S. 39 (1966). First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years. In Meyer v. Nebraska, 262 U.S. 390 (1923), and Bartels v. Iowa, 262 U.S. 404 (1923), this Court, in opinions by Mr. Justice McReynolds, held that the Due Process Clause of the Fourteenth Amendment prevents States from forbidding the teaching of a foreign language to young students. Statutes to this effect, the Court held, unconstitutionally interfere with the liberty of teacher, student, and parent. See also" } ]

[ { "docid": "1332123", "title": "", "text": "succeeded in doing so. Appellant relies on Supreme Court decisions protecting an individual’s right to express, or refrain from expressing, an idea symbolically. Thus, West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), held that a compulsory flag salute was an unconstitutional violation of First Amendment rights of Jehovah’s Witnesses. In that case, Mr. Justice Jackson said (319 U.S. at 632-633, 63 S.Ct. at 1183): There is no doubt that * * * the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. * * * A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn. Twelve years before, in Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), the Court struck down on First Amendment grounds a state statute that prohibited “the display of a red flag as a symbol of opposition by peaceful and legal means to organized government.” See Barnette, supra, 319 U.S. at 633, 63 S.Ct. at 1183. See also Carlson v. People of State of California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104 (1940). Similarly, other unconventional symbolic acts have been recognized as means of communication, e. g., picketing — Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); civil rights sit-ins — see Garner v. State of Louisiana, 368 U.S. 157, 201-202, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961); Brown v. State of Louisiana, 383 U.S. 131, 141-142, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966). But that conduct may be symbolic does not end the matter; it is only the beginning of constitutional inquiry. Is all communicative action symbolic speech and is all symbolic speech protected by the First Amendment? The range of symbolic conduct intended to express disapproval is broad; it can" }, { "docid": "12907319", "title": "", "text": "written word. Nevertheless, the Supreme Court has long recognized that certain forms of expressive conduct are entitled to protection under the First Amendment. See Spence v. Washington, 418 U.S. 405, 409-12, 94 S.Ct. 2727, 2729-31, 41 L.Ed.2d 842 (1974) (per curiam) (display of flag with peace symbol attached was expressive conduct entitled to protection under First Amendment); Tinker, 393 U.S. at 505, 89 S.Ct. at 736 (wearing black armband was conduct akin to pure speech); Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 724, 15 L.Ed.2d 637 (1966) (sit-in by black students in “whites only” library was symbolic speech); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 633-34, 63 S.Ct. 1178, 1183, 87 L.Ed. 1628 (1943) (flag salute is a form of expression); Stromberg v. California, 283 U.S. 359, 368-69, 51 S.Ct. 532, 535-36, 75 L.Ed. 1117 (1931) (display of red flag is expressive conduct). However, not every form of conduct is protected by the First Amendment right of free speech. To determine whether [plaintiffs] conduct is entitled to first amendment protection, “the nature of [plaintiffs] activity, combined with the factual context and environment in which it was undertaken” must be considered. Spence v. Washington, 418 U.S. 405, 409-10, 94 S.Ct. 2727, 2729-30, 41 L.Ed.2d 842 (1974). If [plaintiff] shows “[a]n intent to convey a particularized message ... and in the sur rounding circumstances the likelihood was great that the message would be understood by those who viewed it,” id. at 410-11, 94 S.Ct. at 2730-31, the activity falls within the scope of the first and fourteenth amendments. Monroe v. State Court of Fulton County, 739 F.2d 568, 571 (11th Cir.1984). Cf. Jarman v. Williams, 753 F.2d 76, 77-78 (8th Cir.1985) (nonexpressive dancing constitutes conduct not entitled to protection of the First Amendment). In the present case, it is undisputed that Fowler did not see the movie before she had it shown to her class on the morning of May 31, 1984, a noninstructional day. Fowler agreed to allow the movie to be shown, at the students’ request, because May 31 was “their treat type" }, { "docid": "12275455", "title": "", "text": "seem a bold assertion is a commentary upon how far judicial and scholarly discussion of this basic constitutional guarantee has strayed from common and common-sense understanding.” Community for Creative Non-Violence v. Watt, 703 F.2d 586, 622 (D.C.Cir.1983) (rejecting the notion that sleeping in public parks is expressive conduct about the plight of the homeless) (Scalia, J., dissenting), rev’d sub nom. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Here, what common sense beckons the law ordains. In determining “whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play,” the Supreme Court asks “whether ‘[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.’ ” Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974) (quoted in Texas v. Johnson, 109 S.Ct. at 2539) (emphasis added). For example, the Supreme Court has recognized the “expressive nature” in the burning of a United States flag by a protestor during a political march at the Republican National Convention, Texas v. Johnson, 109 S.Ct. at 2540, in the wearing of black arm-bands, by school students on particular days in protest of the Vietnam War, Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 505, 89 S.Ct. 733, 735, 21 L.Ed.2d 731 (1969), in the peaceful picketing by union members of a supermarket in a large shopping center to protest unfair labor practices, Amalgamated Food Employees Union Local 509 v. Logan Valley Plaza, Inc., 391 U.S. 308, 313-14, 88 S.Ct. 1601, 1605-06, 20 L.Ed.2d 603 (1968), and in conducting a silent sit-in by black persons against a library’s segregation policy, Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 723-24, 15 L.Ed.2d 637 (1966). We note that in all of these cases there was little doubt from the circumstances of the conduct that it formed a clear and particularized political or social message very much understood by those who viewed it. More than one constitutional scholar has commented that" }, { "docid": "8694145", "title": "", "text": "that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President,” Johnson, 491 U.S. at 406, 109 S.Ct. 2533. Still, the Court has not “accept[ed] the view that an apparently limitless variety of conduct can be labeled ‘speech.’ ” United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam), addresses whether the First Amendment protects the display of symbols. In Spence, a college student hung a United States flag outside his apartment window. Id. at 406, 94 S.Ct. 2727. The flag was upside down and. had a peace symbol attached to both sides. Id. He was arrested and prosecuted under a state statute that forbade the placement of “any ... mark, picture, design, [or] drawing” on a flag, as well as the public display of such a flag. Id. at 407, 94 S.Ct. 2727. The stúdent challenged his conviction as a violation of his First and Fourteenth Amendment rights. Noting that the student had not “articulated] his views through printed or spoken words,” the Court asked “whether his activity was sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” Id. at 409, 94 S.Ct. 2727. It concluded that “[o]n this record there can be little doubt that appellant communicated through the use of symbols.” Id. at 410, 94 S.Ct. 2727. The display of the flag “was a pointed expression of anguish” over foreign and domestic governmental affairs. Id. Further, “[a]n intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” Id. at 410-11, 94 S.Ct. 2727 (emphases added). Spence’s “particularized message” language reappeared in Johnson, the flag-burning case. The Court restated that, “[i]n deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether ‘[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that" }, { "docid": "9917582", "title": "", "text": "with, expression.” Maj. at 305. In this way, the majority limits First Amendment protection to conduct already deemed expressive, like flag burning. See maj. at 302-03 (discussing Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) and Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)). In truth, expressive conduct comes in many forms and the Supreme Court has not shied away from recognizing that the First Amendment protects a wide variety of such expression. See R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (burning crosses); Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) (live nude dancing); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing black armbands). From time to time, the Court has even recognized sitting as protected expressive conduct. See Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (Fortas, J., joined by Warren, C.J., and Douglas, J.) (plurality opinion) (reviewing application of breach of the peace violations involving civil rights sit-in at segregated facility); Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961) (same). Yet here, the majority decides that the First Amendment does not protect sitting per se, even though the Court has implicitly recognized that sitting can be a protected form of expression. Id. The majority also brushes aside the Supreme Court’s decision in Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). In Clark, the Court suggested that a ban on sitting or lying in a public forum merits at least some First Amendment consideration. Id. at 293, 104 S.Ct. at 3068-69. Although the Court concluded that the Park Service’s ban on overnight camping did not violate the First Amendment, the Court did not reject outright the idea that camping could constitute expressive conduct. Id. Instead, the Court assumed that there was some expressive content in overnight camping done in connection with a demonstration." }, { "docid": "15575976", "title": "", "text": "at 1183. Unlike the act of community service, the activity involved in cases holding compelled conduct to be violative of the First Amendment included an obviously expressive element. See, e.g., Riley v. National Federation of the Blind, 487 U.S. 781, 795-801, 108 S.Ct. 2667, 2676-80, 101 L.Ed.2d 669 (1988) (requiring professional fundraisers to disclose to potential donors the percentage of charitable contributions collected in the past twelve months that were actually turned over to charity); Wooley, 430 U.S. at 713-15, 97 S.Ct. at 1434-35 (requiring Jehovah’s Witnesses to display state motto “Live Free or Die” on automobile license plates); Miami Herald Publishing Co. v. Tomillo, 418 U.S. 241, 256-58, 94 S.Ct. 2831, 2838-39, 41 L.Ed.2d 730 (1974) (requiring newspaper to give equal reply space to a political candidate criticized in an editorial). Similarly, a state-required contribution by public school teachers to a labor union’s activities was deemed expressive conduct, but only to the extent those union activities involved the expression of political views, the support of political candidates or the advancement of other ideological causes. See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-36, 97 S.Ct. 1782, 1799-1800, 52 L.Ed.2d 261 (1977). We find additional guidance for resolution of the question before us in the Court’s opinion in Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974). The issue in that case was whether displaying the American flag with two peace symbols attached to either side of the flag was expressive conduct. In holding that it was, the Court followed the precedent of Barnette, explaining that it had “for decades ... recognized the communicative connotations of the use of flags.” Spence, 418 U.S. at 410, 94 S.Ct. at 2730; see also Texas v. Johnson, 491 U.S. 397, 405-06, 109 S.Ct. 2533, 2539-40, 105 L.Ed.2d 342 (1989) (burning American flag in political demonstration is expressive conduct). The Court explained that conduct is protected by the First Amendment only if it is “sufficiently imbued with elements of communication.” Spence, 418 U.S. at 409, 94 S.Ct. at 2730. Specifically, the actor must have “[a]n intent to convey" }, { "docid": "22706032", "title": "", "text": "and the Mall were both part of Major Pierre L’Enfant’s original plan for the Capital. Far more pertinent, however, is that these areas constitute, in the Government’s words, “a fitting and powerful forum for political expression and political protest.” Brief for Petitioners 11. The primary purpose for making sleep an integral part of the demonstration was “to re-enact the central reality of homelessness,” Brief for Respondents 2, and to impress upon public consciousness, in as dramatic a way as possible, that homelessness is a widespread problem, often ignored, that confronts its victims with life-threatening deprivations. As one of the homeless men seeking to demonstrate explained: “Sleeping in Lafayette Park or on the Mall, for me, is to show people that conditions are so poor for the homeless and poor in this city that we would actually sleep outside in the winter to get the point across.” Id., at 3. In a long line of cases, this Court has afforded First Amendment protection to expressive conduct that qualifies as symbolic speech. See, e. g., Tinker v. Des Moines School Dist., 393 U. S. 503 (1969) (black armband worn by students in public school as protest against United States policy in Vietnam war); Brown v. Louisiana, 383 U. S. 131 (1966) (sit-in by Negro students in “whites only” library to protest segregation); Stromberg v. California, 283 U. S. 359 (1931) (flying red flag as gesture of support for communism). In light of the surrounding context, respondents’ proposed activity meets the qualifications. The Court has previously acknowledged the importance of context in determining whether an act' can properly be denominated as “speech” for First Amendment purposes and has provided guidance concerning the way in which courts should “read” a context in making this determination. The leading case is Spence v. Washington, 418 U. S. 405 (1974), where this Court held that displaying a United States flag with a peace symbol attached to it was conduct protected by the First Amendment. The Court looked first to the intent of the speaker — whether there was an “intent to convey a particularized message”— and second" }, { "docid": "7028723", "title": "", "text": "(1968) (burning draft registration card to protest Vietnam war); Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (protesting segregation through sit-in); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (refusing to salute flag where salute symbolized adherence to set of political beliefs); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (displaying red flag to protest organized government). Some basic communicative dimension is thus a prerequisite for conduct to qualify as speech. But the Supreme Court has gone further: Not all conduct that is expressive constitutes speech in its constitutional sense. The Court made this clear from the outset in the seminal case of United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). While recognizing the conceptual validity of symbolic speech, the Court rejected in the same breath the suggestion that “an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Id. at 376, 88 S.Ct. at 1678; see also Barnes v. Glen Theatre, Inc., 501 U.S. 560, 570, 111 S.Ct. 2456, 2462, 115 L.Ed.2d 504 (1991) (finding insufficient the expressive content of public nudity; quoting O’Brien, 391 U.S. at 376, 88 S.Ct. at 1678). As the Court more recently observed, “It is possible to find some kernel of expression in almost every activity a person undertakes — for example walking down the street or meeting one’s friends at the shopping mall — but such a kernel is not sufficient to bring the activity within the protections of the First Amendment.” City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989) (finding insufficient the expressive content of dance-hall gatherings). The Court’s per curiam decision in Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) has emerged as the primary guidepost in determining whether conduct having a communicative dimension is sufficiently expressive to qualify as speech. The conduct in Spence entailed the public" }, { "docid": "7028722", "title": "", "text": "this stress on expression and communication more clear than in the Court’s approach to speech that falls outside the traditional domain of the spoken or written word. The Amendment’s purview extends not to conduct in general, but rather to expressive conduct. See R.A.V., 505 U.S. 377, 382, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305 (1992) (“The First Amendment generally prevents government from proscribing speech, or even expressive conduct.”) (citations omitted, emphasis added); Smith v. Goguen, 415 U.S. 566, 586, 94 S.Ct. 1242, 1253, 39 L.Ed.2d 605 (1974) (“Th[e First] Amendment, of course, applies to speech and not to conduct without substantial communicative intent and impact.”) (White, J., concurring). The classic examples of conduct-as-speech all contain patently expressive messages. See Texas v. Johnson, 491 U.S. 397, 109, S.Ct. 2533, 105 L.Ed.2d 342 (1989) (burning American flag to protest Republican nomination of Ronald Reagan); Tinker, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing black armband to protest American involvement in Vietnam); United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (burning draft registration card to protest Vietnam war); Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (protesting segregation through sit-in); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (refusing to salute flag where salute symbolized adherence to set of political beliefs); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (displaying red flag to protest organized government). Some basic communicative dimension is thus a prerequisite for conduct to qualify as speech. But the Supreme Court has gone further: Not all conduct that is expressive constitutes speech in its constitutional sense. The Court made this clear from the outset in the seminal case of United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). While recognizing the conceptual validity of symbolic speech, the Court rejected in the same breath the suggestion that “an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to" }, { "docid": "23512725", "title": "", "text": "The law at the time of the discharge clearly established that certain forms of conduct are considered speech and are protected by the First Amendment. See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293-94, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984) (assuming that overnight camping in a public park in connection with a demonstration in support of the homeless was expressive conduct protected by the First Amendment); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981) (nude dancing is constitutionally protected expression); Tinker v. Des Moines School District, 393 U.S. 503, 505-06, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969) (wearing black armbands in school is akin to pure speech); Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 723-24, 15 L.Ed.2d 637 (1966) (sit-in by blacks in a “whites only” area to protest segregation was expression protected by First Amendment); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632-33, 63 S.Ct. 1178, 1182, 87 L.Ed. 1628 (1943) (compulsory flag salute is a form of utterance within the protection of the First Amendment); Florida Gulf Coast Bldg. & Constr. Traders Council, 796 F.2d 1328, 1332 (11th Cir.1986) (distribution of handbills protected by First Amendment); Monroe v. State Court of Fulton County, 739 F.2d 568, 572 (11th Cir.1984) (burning American flag is a form of protected speech); Leonard v. City of Columbus, 705 F.2d 1299, 1303-04 (11th Cir.1983) (taking flag patch off of police uniform is protected speech). The Supreme Court, in Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974), set out the following test for determining whether symbolic acts constitute speech for First Amendment purposes: there must be (1) an intent on the part of the actor to convey a particularized message, and (2) circumstances surrounding the act such that the likelihood is great that the message will be understood by those who view it. Accord Monroe v. State Court of Fulton County, 739 F.2d at 571. Stewart alleges that by leaving the meeting early he" }, { "docid": "15575977", "title": "", "text": "See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-36, 97 S.Ct. 1782, 1799-1800, 52 L.Ed.2d 261 (1977). We find additional guidance for resolution of the question before us in the Court’s opinion in Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974). The issue in that case was whether displaying the American flag with two peace symbols attached to either side of the flag was expressive conduct. In holding that it was, the Court followed the precedent of Barnette, explaining that it had “for decades ... recognized the communicative connotations of the use of flags.” Spence, 418 U.S. at 410, 94 S.Ct. at 2730; see also Texas v. Johnson, 491 U.S. 397, 405-06, 109 S.Ct. 2533, 2539-40, 105 L.Ed.2d 342 (1989) (burning American flag in political demonstration is expressive conduct). The Court explained that conduct is protected by the First Amendment only if it is “sufficiently imbued with elements of communication.” Spence, 418 U.S. at 409, 94 S.Ct. at 2730. Specifically, the actor must have “[a]n intent to convey a particularized message ... and in the surrounding circumstances the likelihood. [must be] great that the message would be understood by those who viewed it.” Id. at 410-11, 418 U.S. at 2730. Thus, in deciding whether conduct is expressive, we must look to the nature of the activity in conjunction with the factual context and environment in which it is undertaken. The significance for First Amendment purposes of the viewer’s perception is readily apparent in the holdings of the Court that protected expressive conduct includes wearing a black arm band to protest the Vietnam war, Tinker, 393 U.S. at 505-06, 89 S.Ct. at 735-36; burning a draft card to protest the war, United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968); demonstrating on the grounds of a state capítol, Edwards v. South Carolina, 372 U.S. 229, 235-36, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963); a civil rights march, Shuttlesworth v. City of Birmingham, 394 U.S. 147, 152, 89 S.Ct. 935, 939, 22 L.Ed.2d 162 (1969); leafletting, Schneider" }, { "docid": "9917581", "title": "", "text": "for people to communicate, meet, protest, sleep, beg, solicit alms, or engage in other First Amendment activities on Seattle’s sidewalks whenever sitting or lying is involved. That this ordinance aims at expressive conduct is evidenced by the ordinance’s multiple exceptions that allow sitting and lying in non-expressive situations. SMC § 15.48.040(B). It is undeniable that city sidewalks are public forums meant for a variety of expressive activities in addition to walking. Sidewalks ... are among those areas of public property that traditionally have been held open to the public for expressive activities and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property. United States v. Grace, 461 U.S. 171, 179, 103 S.Ct. 1702, 1708, 75 L.Ed.2d 736 (1983). Indeed, because sidewalks are quintessential public forums, courts normally review an ordinance restricting expressive activity on sidewalks under some form of First Amendment scrutiny. But according to the majority, constitutionally protected expressive conduct on public sidewalks is limited to conduct “integral to, or commonly associated with, expression.” Maj. at 305. In this way, the majority limits First Amendment protection to conduct already deemed expressive, like flag burning. See maj. at 302-03 (discussing Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) and Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)). In truth, expressive conduct comes in many forms and the Supreme Court has not shied away from recognizing that the First Amendment protects a wide variety of such expression. See R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (burning crosses); Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) (live nude dancing); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing black armbands). From time to time, the Court has even recognized sitting as protected expressive conduct. See Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (Fortas, J., joined by Warren," }, { "docid": "8694144", "title": "", "text": "question is yes, does requiring Mr. Cressman to display the image on the license plate affixed to his personal vehicles violate his First Amendment rights under the compelled speech doctrine? To answer these questions, we must review the Supreme Court’s decisions on symbolic speech and compelled speech. a. Symbolic Speech “The First Amendment literally forbids the abridgment only of ‘speech,’ ” but the Supreme Court has “long recognized that its protection does not end at the spoken or written word.” Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); see Hurley, 515 U.S. at 569, 115 S.Ct. 2338 (“[Tjhe Constitution looks beyond written or spoken words as mediums of expression.”). The First Amendment protects certain expressive conduct, such as the symbolic “wearing of an armband for the purpose of expressing certain views” about the Vietnam War, Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and the burning of an American flag as “the culmination ... of a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President,” Johnson, 491 U.S. at 406, 109 S.Ct. 2533. Still, the Court has not “accept[ed] the view that an apparently limitless variety of conduct can be labeled ‘speech.’ ” United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam), addresses whether the First Amendment protects the display of symbols. In Spence, a college student hung a United States flag outside his apartment window. Id. at 406, 94 S.Ct. 2727. The flag was upside down and. had a peace symbol attached to both sides. Id. He was arrested and prosecuted under a state statute that forbade the placement of “any ... mark, picture, design, [or] drawing” on a flag, as well as the public display of such a flag. Id. at 407, 94 S.Ct. 2727. The stúdent challenged his conviction as a violation of his First and Fourteenth Amendment rights." }, { "docid": "12907318", "title": "", "text": "(1968)); see also Anderson v. Evans, 660 F.2d 153, 157 (6th Cir.1981); Russo, 469 F.2d at 631. In the present case the district court concluded that Mrs. Fowler was entitled to the protection of the First Amendment while acting as a teacher. That a teacher does have First Amendment protection under certain circumstances cannot be denied. See Tinker, 393 U.S. at 506, 89 S.Ct. 736; James, 461 F.2d at 571. Likewise, a motion picture is a form of expression which may be entitled to the protection of the First Amendment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S.Ct. 777, 780-81, 96 L.Ed. 1098 (1952). However, I conclude that Fowler’s conduct in having the movie shown under the circumstances present here did not constitute expression protected by the First Amendment. It is undisputed that Fowler was discharged for the showing of the movie, Pink Floyd — The Wall. Such conduct, under the circumstances involved, clearly is not “speech” in the traditional sense of the expression of ideas through use of the spoken or written word. Nevertheless, the Supreme Court has long recognized that certain forms of expressive conduct are entitled to protection under the First Amendment. See Spence v. Washington, 418 U.S. 405, 409-12, 94 S.Ct. 2727, 2729-31, 41 L.Ed.2d 842 (1974) (per curiam) (display of flag with peace symbol attached was expressive conduct entitled to protection under First Amendment); Tinker, 393 U.S. at 505, 89 S.Ct. at 736 (wearing black armband was conduct akin to pure speech); Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 724, 15 L.Ed.2d 637 (1966) (sit-in by black students in “whites only” library was symbolic speech); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 633-34, 63 S.Ct. 1178, 1183, 87 L.Ed. 1628 (1943) (flag salute is a form of expression); Stromberg v. California, 283 U.S. 359, 368-69, 51 S.Ct. 532, 535-36, 75 L.Ed. 1117 (1931) (display of red flag is expressive conduct). However, not every form of conduct is protected by the First Amendment right of free speech. To determine whether [plaintiffs] conduct is entitled to first" }, { "docid": "22759944", "title": "", "text": "event the interest drops out of the picture. See 418 U. S., at 414, n. 8. The First Amendment literally forbids the abridgment only of “speech,” but we have long recognized that its protection does not end at the spoken or written word. While we have rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea,” United States v. O’Brien, supra, at 376, we have acknowledged that conduct may be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments,” Spence, supra, at 409. In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether “[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” 418 U. S., at 410-411. Hence, we have recognized the expressive nature of students’ wearing of black armbands to protest American military involvement in Vietnam, Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 505 (1969); of a sit-in by blacks in a “whites only” area to protest segregation, Brown v. Louisiana, 383 U. S. 131, 141-142 (1966); of the wearing of American military uniforms in a dramatic presentation criticizing American involvement in Vietnam, Schacht v. United States, 398 U. S. 58 (1970); and of picketing about a wide variety of causes, see, e. g., Food Employees v. Logan Valley Plaza, Inc., 391 U. S. 308, 313-314 (1968); United States v. Grace, 461 U. S. 171, 176 (1983). Especially pertinent to this case are our decisions recognizing the communicative nature of conduct relating to flags. Attaching a peace sign to the flag, Spence, supra, at 409-410; refusing to salute the flag, Barnette, 319 U. S., at 632; and displaying a red flag, Stromberg v. California, 283 U. S. 359, 368-369 (1931), we have held, all may find shelter under the First Amendment. See also Smith v. Goguen, 415 U. S. 566, 588 (1974)" }, { "docid": "21727473", "title": "", "text": "the flag. At that point police officers attempted to disperse the demonstrators and extinguish the burning flag. 250 Ga. 30, 30-31, 295 S.E.2d 512 (1982). The Georgia statute under which Monroe was convicted provides that “[a] person who deliberately mutilates, defaces, or defiles the flag of the United States ... is guilty of- a misdemeanor.” Ga.Code Ann. § 26-2803. Monroe does not challenge the constitutionality of the state statute on its face; she challenges it only as applied to her. Monroe claims that her conviction under the statute violates her right to free speech under the first and fourteenth amendments. II. DISCUSSION First, we must decide whether Monroe’s act of burning the flag was a type of symbolic speech within the purview of the free speech clause of the first amendment. Nonverbal expression may be a form of free speech entitled to first amendment protection. See Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (attaching peace sign to flag is form of free speech); Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing black armbands in school is akin to pure speech); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (compulsory flag salute is form of utterance); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (display of red flag is a form of protected speech); Leonard v. City of Columbus, 705 F.2d 1299 (11th Cir.1983) (police officers removing American flags from uniforms is protected speech); Smith v. United States, 502 F.2d 512 (5th Cir.1974) (wearing peace pin is within the free speech protection). The Supreme Court for decades has recognized that the flag is a symbol with special communicative connotations. Spence v. Washington, 418 U.S. at 410, 94 S.Ct. at 2730. In West Virginia State Board of Education v. Barnette, 319 U.S. at 632-33, 63 S.Ct. at 1182-83, the Court stated: “Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system," }, { "docid": "9917563", "title": "", "text": "Seattle chapter of the National Organization for Women. What brings them together, and what defines the class they represent, is that they all sometimes sit or lie on the sidewalk. Plaintiffs claim it is unconstitutional for the city to curtail their use of the sidewalk as a sideseat or a sidebed. They filed suit under 42 U.S.C. § 1988, claiming that the sidewalk ordinance violates their rights to procedural and substantive due process, equal protection, travel and free speech. Plaintiffs moved for summary judgment, asking the district court to declare the ordinance unconstitutional on its face. The district court denied the motion and, instead, granted the city’s cross-motion for summary judgment, holding that the ordinance is facially constitutional. Plaintiffs appeal only on First Amendment and substantive due process grounds. We review de novo. 1. FREE SPEECH The First Amendment protects not only the expression of ideas through printed or spoken words, but also symbolic speech— nonverbal “activity ... sufficiently imbued with elements of communication.” Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974). Spence is a typical symbolic speech case. Appellant there had been prosecuted for displaying an American flag on which he had formed a peace sign with plastic tape. He did so in order to protest American bombing in Cambodia and the National Guard’s killing of anti-war demonstrators at Kent State. The context in which he acted made it highly likely that his message would be understood, whereas at another time it “might be interpreted as nothing more than bizarre behavior.” Id. at 410, 94 S.Ct. at 2730. His conduct thus amounted to expression, because “[a]n intent to convey a particularized message was present, and ... the likelihood was great that the message would be understood by those who viewed it.” Id. at 410-11, 94 S.Ct. at 2730. The Court held the statute unconstitutional “as applied to appellant’s activity.” Id. at 406, 94 S.Ct. at 2728; see also Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539-40, 105 L.Ed.2d 342 (1989) (burning an American flag as part of a political" }, { "docid": "21727474", "title": "", "text": "393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing black armbands in school is akin to pure speech); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (compulsory flag salute is form of utterance); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (display of red flag is a form of protected speech); Leonard v. City of Columbus, 705 F.2d 1299 (11th Cir.1983) (police officers removing American flags from uniforms is protected speech); Smith v. United States, 502 F.2d 512 (5th Cir.1974) (wearing peace pin is within the free speech protection). The Supreme Court for decades has recognized that the flag is a symbol with special communicative connotations. Spence v. Washington, 418 U.S. at 410, 94 S.Ct. at 2730. In West Virginia State Board of Education v. Barnette, 319 U.S. at 632-33, 63 S.Ct. at 1182-83, the Court stated: “Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind.” The Supreme Court does not, however, “accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968). To determine whether appellant’s conduct is entitled to first amendment protection, “the nature of appellant’s activity, combined with the factual context and environment in which it was undertaken” must be considered. Spence v. Washington, 418 U.S. 405, 409-10, 94 S.Ct. 2727, 2729-30, 41 L.Ed.2d 842 (1974). If appellant shows “[a]n intent to convey a particularized message ... and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it,” id. at 410-11, 94 S.Ct. at 2730-31, the activity falls within the scope of the first and fourteenth amendments. In the case before us, Monroe was convicted for burning the American flag during a public demonstration protesting" }, { "docid": "23375010", "title": "", "text": "speaking and writing, but also to some nonverbal acts of communication, viz., “expressive conduct” (or “symbolic speech”). Affixing leehis to utility poles does not involve the use of words, so the plaintiffs’ behavior is protected by the Free Speech Clause only if it constitutes expressive conduct. Conduct is protected by the First Amendment when “the nature of [the] activity, combined with the factual context and environment in which it was undertaken,” shows that the “activity was sufficiently imbued with elements of communication to fall within the [First Amendment’s] scope.” Spence v. Washington, 418 U.S. 405, 409-10, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974); Troster v. Pa. State Dep’t of Corrections, 65 F.3d 1086, 1090 (3d Cir.1995). Context is crucial to evaluating an expressive conduct claim because “the context may give meaning to the symbol” or act in question. Spence, 418 U.S. at 410, 94 S.Ct. 2727. Until 1995, the Supreme Court determined whether speech is “sufficiently imbued with elements of communication” by asking “whether ‘[a]n intent to convey a particularized message was present, and [whether] in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.'” Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (quoting Spence, 418 U.S. at 410-11, 94 S.Ct. 2727). Applying this two-prong test (the “Spence-Johnson test”), the Supreme Court held that the First Amendment shelters certain forms of nonverbal communication. For instance, Johnson held that burning an American flag as part of a demonstration against the Reagan Administration’s policies that coincided with the 1984 Republican Party convention was “speech” because its “expressive, overtly political nature” was “both intentional and overwhelmingly apparent” to the protestors’ audience. 491 U.S. at 399, 406, 109 S.Ct. 2533. Similarly, Spence held that attaching a peace symbol to an American flag and displaying the “peace flag” upside down was protected expression. The actor “testified that he put a peace symbol on the flag and displayed it to public view as a protest against the invasion of Cambodia and the killings at Kent State University, events which occurred a" }, { "docid": "23375011", "title": "", "text": "in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.'” Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (quoting Spence, 418 U.S. at 410-11, 94 S.Ct. 2727). Applying this two-prong test (the “Spence-Johnson test”), the Supreme Court held that the First Amendment shelters certain forms of nonverbal communication. For instance, Johnson held that burning an American flag as part of a demonstration against the Reagan Administration’s policies that coincided with the 1984 Republican Party convention was “speech” because its “expressive, overtly political nature” was “both intentional and overwhelmingly apparent” to the protestors’ audience. 491 U.S. at 399, 406, 109 S.Ct. 2533. Similarly, Spence held that attaching a peace symbol to an American flag and displaying the “peace flag” upside down was protected expression. The actor “testified that he put a peace symbol on the flag and displayed it to public view as a protest against the invasion of Cambodia and the killings at Kent State University, events which occurred a few days prior to his arrest,” and “it would have been difficult for the great majority of citizens to miss the drift of appellant’s point at the time that he made it.” 418 U.S. at 408, 410, 94 S.Ct. 2727. Additional types of nonverbal communication have also been deemed constitutionally protected. See, e.g., Schacht v. United States, 398 U.S. 58, 62-63, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970) (wearing United States military uniforms as part of theatrical presentation opposing Vietnam War); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 505-06, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing black armband at school to protest Vietnam War); W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (saluting the American flag to show allegiance to the United States); Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (displaying red flag to express opposition to organized government). In other cases, the Court assumed, without deciding, that the nonverbal political demonstrations at" } ]

[ { "docid": "20646296", "title": "", "text": "v. United States, supra; Phillips Construction Co. v. United States, supra; Urban Plumbing & Heating Co. v. United States, supra; and Wunderlich Contracting Co., et al. v. United States, supra, all decided subsequent to Bruce, all rejecting the “total cost” method, and all reiterating or quoting with approval said oft-cited statement from F. H. McGraw & Co., supra, which plaintiff argues was superseded by Bruce. For instance, in WEB Corp., the court stated: “This theory has never been favored by the court and has been tolerated only when no other mode was available and when the reliability of the supporting evidence was fully substantiated. [Citations omitted.] The acceptability of the method hinges on proof that (1) the nature of the particular losses make it impossible or highly impracticable to determine them with a reasonable degree of accuracy; (2) the plaintiff’s bid or estimate was realistic; (3) its actual costs were reasonable; and (4) it was not responsible for the added expenses.” And the court went on to state that it was not satisfied “that plaintiff sufficiently proved the reasonableness of its estimates or its actual costs.” [Emphasis supplied.] 183 Ct. Cl. at 426. Thus, the court made clear that in such a case, the contractor’s obligation of carrying its burden of submitting satisfactory proof of damage also includes the burden of submitting “fully substantiated * * * supporting evidence” that “its actual costs were reasonable.” Id. Consequently, it is clear that a contractor does not meet such burden by simply proving what its total expenditures were, and then resting on a presumption of reasonableness as was applied by the court in the quite peculiar equitable adjustment circumstances involved in the Bruce Construction Corp. case. In situations where the court has rejected the “total cost” method of proving damages, but where the record nevertheless contains reasonably satisfactory evidence of what the damages are, computed on an acceptable basis, the court has adopted such other evidence, Christensen Construction Co. v. United States, supra; Lilley-Ames Co., Inc. v. United States, supra; F. H. McGraw & Co. v. United States, supra; Turnbull, Inc., et" } ]

[ { "docid": "13311535", "title": "", "text": "management problems and technical and performance problems that arose on the ATACC program were of a greater magnitude than that recognized by plaintiff, recovery under a modified total cost theory is not warranted. Plaintiff has failed to carry its burden with regard to the claim for modified total cost recovery. Unlike defendant’s house-of-cards theory, the lack of proof does not undercut all of plaintiffs damages claims. The court recognizes that changes and costs related to software were interdependent and that plaintiff reasonably could not have been expected either to track them from the outset or to assign costs to its Summary of Impacts to WBS Elements, PX 953, that retrospectively set out each constructive change and its impacts. See Boyajian, 191 Ct.Cl. at 252, 423 F.2d at 1242 (noting that failure to keep books in a segregated manner is not fatal to making claim). The barrier to plaintiffs recovery ultimately is the recognition that a verifiable decrement due to contractor inefficiency was required, coupled with the failure to adduce testimony that would have furnished the predicate for a finding of its reasonableness. Assuming that plaintiff had put forward evidence on these two points, plaintiff would have been able to recover on its successful constructive change claims for which costs reasonably could not be broken out. This infirmity also precludes an award of damages reflecting a “jury verdict” approach. Nonetheless, plaintiff has shown damages reasonably allocated to several cost categories. Unlike in Neal & Co., where the court was unable to consider recovery based on individual claims “[b]ecause [the contractor] presented its claims in a modified total cost approach, [and] did not put on evidence of direct costs associated with specific items of government responsibility,” 36 Fed.Cl. at 644, plaintiff in the instant case entered evidence of direct costs associated with specific items of government responsibility. These costs include those associated with ECP1 and the reliability requirements. However, for the traceable costs related to the second SRR and the retesting of NDI, GDS did not present evidence of direct costs, and therefore GDS is unable to recover those damages. For ECP1," }, { "docid": "23431598", "title": "", "text": "based upon the alleged total expenditures of the entire work less the amount received from the Government,” held that “[t]his is not the proper basis for recovery. To include all costs to plaintiff on the project, proper and improper, would place upon the Government the necessity of reimbursing it for whatever losses it incurred, notwithstanding their nature.” In Laburnum Construction Corp. v. United States, supra, 325 F.2d at 458-459, 163 Ct.Cl. at 351-352, the court, after rejecting a calculation of “plaintiff’s damages by deducting from its overall direct costs the contract price that had been paid for it,” held that “[t]he proper measure of damages in a case such as this [i. e., various alleged delays caused by the Government] is to permit the plaintiff to recover its costs during the periods of delay,” and that “[t]he burden of allocating costs to the particular periods involved is upon the plaintiff.” In Lilley-Ames Co., Inc. v. United States, supra, 293 F.2d at 632, 154 Ct.Cl. at 549, the court held that “[t]he plaintiff of course can recover only for those expenses occasioned from the [breach] by the defendant. The plaintiff may not include all costs arising from the performance of the contract as the basis for its recovery.” And in Turnbull, Inc. et al. v. United States, supra, 389 F.2d at 1015, 180 Ct.Cl. at 1025, the court, noting the contractor’s failure “to prove increased costs or damages relating to specific or separate items,” refused to measure the amount of an equitable adjustment based upon “the difference between its bid price and the actual cost of performing the entire contract.” It reiterated its past criticism of “this ‘total cost’ method of computing recovery” as being unsatisfactory. In the instant case, the proof of “damages” in effect consisted only of a schedule, supported by an accountant’s testimony, indicating what plaintiff’s books and records showed were plaintiff’s total contract costs, the total contract receipts, and plaintiff’s total loss, being the difference between the costs and the receipts. That this is not in and of itself acceptable “proof,” was made plain in River Construction" }, { "docid": "3388824", "title": "", "text": "of liability. To show the amount of injury, Servidone presented evidence under the total cost method. Servidone, 19 Cl.Ct. at 384. Under this method, the contractor must show: (1) the impracticability of proving actual losses directly; (2) the reasonableness of its bid; (3) the reasonableness of its actual costs; and (4) lack of responsibility for the added costs. WRB Corp. v. United States, 183 Ct.Cl. 409, 426 (1968). Although finding Servidone’s bid unreasonable, the Claims Court awarded damages. Servidone, 19 Cl.Ct. at 384-85. In doing so, the Claims Court employed a modified total cost method. This modified method substituted a reasonable bid amount for Servidone’s original estimate. A trial court must use the total cost method with caution and as a last resort. Under this method, bidding inaccuracies can unjustifiably reduce the contractor’s estimated costs. Moreover, performance inefficiencies can inflate a contractor’s costs. These inaccuracies and inefficiencies can thus skew accurate computation of damages. Despite this risk, this court's predecessor condoned the total cost method in those extraordinary circumstances where no other way to compute damages was feasible and where the trial court employed proper safeguards. Great Lakes Dredge & Dock Co. v. United States, 119 Ct.Cl. 504, 559, 96 F.Supp. 923, 926 (1951), cert. denied, 342 U.S. 953, 72 S.Ct. 624, 96 L.Ed. 708 (1952); Boyajian v. United States, 423 F.2d 1231, 1241, 191 Ct.Cl. 233 (1970). The Claims Court found that Servidone met the four-part test and thus approved the total cost method in this case. Servidone, 19 Cl.Ct. at 384. The Claims Court granted Servidone a recovery under the modified total cost method: [T]he total cost approach was used as “only a starting point\" with such adjustments thereafter made in such computations as allowances for various factors as to convince the court that the ultimate, reduced, figure fairly represented the increased costs the contractor directly suffered from the particular action of defendant which was the subject of the complaint. Boyajian, 423 F.2d at 1240 (citation omitted); see also, MacDougald Constr. Co. v. United States, 122 Ct.Cl. 210 (1952). The Claims Court modified the total cost method to" }, { "docid": "20646292", "title": "", "text": "And, as shown, in three of the four cases (Great Lakes Dredge, MacDougald, and Hedin), the computation involved reimbursement in the nature of an equitable adjustment, with the fourth (Oliver-Finnic) involving only a labor computation which constituted but one component of the damages. It was not, in the usual “total cost” sense, based upon total contract expenditures. None of sucli cases were comparable to the instant one, in which several breaches are alleged but consolidated for damage purposes into a claimed unadjusted “total cost” recovery. The above review indicates that the court has never allowed such a recovery in such a case. On the other hand, it has consistently insisted on a showing that “the excess costs claimed must be tied in to defendant’s breaches” (J. D. Hedin Construction Co., supra, 171 Ct. Cl. at 108, 341 F. 2d at 259), especially where, as here, there is an insufficient showing that such a direct damage calculation could not as a practical matter be made. Nor does the mere fact that plaintiff’s books and records do not, in segregated form, show the amounts of the increased costs attributable to the breaches give it automatic license to use the “total cost” method. Contractors rarely keep their books in such fashion. Such failure, however, normally does not prevent the submission of reasonably satisfactory proof of increased costs incurred during certain contract periods or flowing from certain events based, for instance, on acceptable cost allocation principles or on expert testimony. See Turnbull, Inc., et al. v. United States, supra, 180 Ct. Cl. at 1024-25, 389 F. 2d at 1014-15. Finally, plaintiff says that although in the past one of the principal grounds for criticizing the “total cost” method has been that, as stated in F. H. McGraw & Co. v. United States, supra, 131 Ct. Cl. at 511, 130 F. Supp. at 400, “it assumes plaintiff’s costs were reasonable * * * which is not always the case, by any means,” nevertheless this court, in Bruce Construction Corp. et al. v. United States, supra, recently adopted a different view, i.e., that a contractor’s expenditures" }, { "docid": "13311521", "title": "", "text": "show how the BAFO was reduced for the shelter costs brought about by GDS’s self-performing rather than contracting with ASD, the court is not fully convinced that such was the case. Significantly, the shelter costs do not account for the entirety of the BAFO reduction. Even if the court were to accept plaintiffs current description of the BAFO reduction, there are still amounts, though limited in amount, that raise the concerns about which Mr. McGeehin testified. At a time when GDS should have had great interest in answering accurately about its claim that DCAA was auditing, it indicated a bottom-line reduction. Only at trial did plaintiff offer an alternative explanation for the BAFO reduction. While the money trail that plaintiff presented for the BAFO reduction is comprehensible, Mr. McGeehin justifiably still questioned the ability to make any determination about the reasonableness of the BAFO. 3) Reasonableness of actual costs “A schedule of verified costs ... is not proof of damages but only a starting point____” Boyajian, 191 Ct.Cl. at 247, 423 F.2d at 1239 (quoting River Constr. Corp. v. United States, 159 Ct.Cl. 254, 270-71, 1962 WL 9302 (1962)). Plaintiff must progress to proving that the actual costs were reasonable in light of the government-directed changes about which plaintiff complains. Plaintiff failed to carry its burden on this issue. Although plaintiff offered much evidence that its claimed costs were actually incurred, little evidence was introduced that these costs were reasonable. Costs associated with actual changes may well be reasonable; however, additional, actual costs related to asserted changes that were not changes cannot be reasonable because they cannot be levied against the Government. These latter costs are merely overruns that any contractor with a fixed-price contract would be required to absorb. The court is unable to conclude that overall actual costs were reasonable. Some actual costs were reasonable, while others were not reasonable. This mixed finding raises doubt as to whether a modified total cost recovery is appropriate. 4) Lack of responsibility for additional costs Plaintiff claims a myriad of constructive changes and breaches of the duty to cooperate. Plaintiff proved" }, { "docid": "23109012", "title": "", "text": "show precisely the costs incurred as the result of the several government actions complained of, and it thus sought what it termed a “jury verdict” by the Board upholding a claim for the total costs of the alleged combined government delays and extras. Plaintiff’s evidence primarily took the form of an overall presentation, primarily presented through an expert witness, of what its costs should have been and what they actually were. The entire difference of $60,000 between estimated and actual costs (both estimates) was attributed to the government’s termination, delays, changes and extras. Plaintiff has thus combined the “jury verdict” approach to damages with the “total cost” method for the determination of damages, both discussed recently by this court in WRB Corporation et al. v. United States, 183 Ct. Cl. 409, 425-26 (1968). Both “jury verdict” and “total cost” standards are not favored, and are permitted to be used to compute, damages only upon strict conditions, recently stated by the court in WRB Corporation et al., supra. Some of these conditions are that the nature of the losses must be such that they cannot be determined with reasonable accuracy; that a showing must be made that the bid — the basis for the estimate of what costs should have been — was realistic; that the actual costs must be reasonable; and, finally, that the additional costs must be attributable only to the government’s changes and delays. These conditions are no more than just if the contractor is to meet his “essential burden of establishing the fundamental facts of liability, causation, and resultant injury.” Wunderlich Contracting Co. v. United States, 173 Ct. Cl. 180, 199, 351 F. 2d 956, 968 (1965). Little if any effort was made to meet these conditions, and such testimony as was given does not meet any of them. The Board justifiably found fault with such evidence as was presented. Proof of damages or costs was made by testimony of the president of the contractor at the time of performance of the contract, by testimony of the mentioned expert on damages and by a “Summary of Claim”" }, { "docid": "23431612", "title": "", "text": "keep their books in such fashion. Such failure, however, normally does not prevent the submission of reasonably satisfactory proof of increased costs incurred during certain contract periods or flowing from certain events based, for instance, on acceptable cost allocation principles or on expert testimony. See Turnbull, Inc. et al. v. United States, supra, 389 F.2d at 1014-1015, 180 Ct.Cl. at 1024-1025. Finally, plaintiff says that although in the past one of the principal grounds for criticizing the “total cost” method has been that, as stated in F. H. McGraw & Co. v. United States, supra, 130 F.Supp. at 400, 131 Ct.Cl. at 511, “it as sumes plaintiff’s costs were reasonable * * * which is not always the case, by any means,” nevertheless this court, in Bruce Construction Corp. et al. v. United States, supra, recently adopted a different view, i. e., that a contractor’s expenditures made in the performance of the contract would be presumed to be reasonable. However, the issue in Bruce in no way involved the application of the “total cost” method of proving damages in a breach of contract case. Bruce involved the question of the appropriate amount of an equitable adjustment. There, the contractor was required to substitute a different building block for the block originally specified. Although the contractor actually paid the same price for the different block as it would have paid for the originally specified block, it nevertheless claimed the substituted block had a greater fair market value and that it was entitled to an equitable adjustment which reflected such value. The court rejected the contention, holding that the purpose of an equitable adjustment “is to safeguard the contractor against increased costs engendered by the modification” and that the amount thereof, therefore, “cannot be the value received by the Government * * Id., 324 F.2d at 518, 163 Ct.Cl. at 100. It therefore held that the equitable adjustment should be “based on cost and not on fair market value” (id., 324 F.2d at 518, 163 Ct.Cl. at 100-101), provided that such cost is reasonable. And in this connection, the court held that" }, { "docid": "13311516", "title": "", "text": "29 Fed.Cl. at 444. Such proof of damages must be made “with sufficient certainty so that the determination ... will be more than mere speculation.” Willems Indus., Inc. v. United States, 155 Ct.Cl. 360, 376, 295 F.2d 822, 831 (1961) (citing Winn-Senter Constr. Co. v. United States, 110 Ct.Cl. 34, 36, 75 F.Supp. 255, 259 (1948)). As a method of tempering a total cost award, which is a “last resort,” Neal & Co., Inc. v. United States, 36 Fed.Cl. 600, 638 (1996) (citation omitted), affd, 121 F.3d 683 (Fed.Cir.1997), the court may use a modified total cost award to estimate damages. To arrive at a modified total cost award, the court uses “the total cost method, adjusted for any deficiencies in the plaintiffs proof in satisfying the requirements of the total cost method.” Id. The total cost method, which measures damages based on the difference between a plaintiffs actual incurred costs and its proposed costs, is appropriate when 1) [t]he nature of the losses makes it impossible or highly impracticable to determine the actual losses directly with a reasonable degree of accuracy; 2) the plaintiffs bid w-s reasonable; 3) its actual costs were reasonable; and 4) it was not responsible for the added costs. Servidone Constr. Corp. v. United States, 19 Cl.Ct. 346, 384 (1990) (citation omitted), aff'd, 931 F.2d 860 (Fed.Cir.1991); see also Teledyne McCormick-Selph v. United States, 218 Ct.Cl. 513, 516-17, 588 F.2d 808, 810 (1978) (holding that plaintiff must prove all four requirements by preponderance of evidence); Boyajian v. United States, 191 Ct.Cl. 233, 239-43, 423 F.2d 1231, 1235-36 (1970) (discussing need to show modified total cost with accuracy). In order to justify a modified total cost award, “[t]he contractor must adequately separate the additional costs for which it is responsible.” Neal & Co., 36 Fed.Cl. at 638. 1) Nature of the losses To recover under a modified total cost claim, plaintiff must demonstrate that the nature of the losses makes it “highly impracticable to determine the actual losses directly with a reasonable degree of accuracy” Servidone, 19 Cl.Ct. at 384. Based on the testimony and other" }, { "docid": "23694264", "title": "", "text": "items that were on the critical path while the project was on-going, but offered no credible evidence of the interdependence of the project’s activities. Id. (citing WRB Corp. v. United States, 183 Ct.Cl. 409, 426, 1968 WL 9146 (1968)). Plaintiff admitted into evidence much data reflecting alleged days of delay, dollars lost, and expenses incurred, but offered no credible proof of how the data related to delay or causation of delay. Without being able to allocate expenses to delay claims, this court cannot award a judgment in favor of plaintiff. Westerhold v. United States, 28 Fed.Cl. 172 (1993). Plaintiff appears to be seeking a total cost claim for which it did not make an adequate showing. The total cost approach to damages may be used only in rare cases where it is proved that (1) the nature of the particular losses make it impossible or highly impracticable to determine them with a reasonable degree of accuracy; (2) the plaintiff’s bid or estimate was realistic; (3) its actual costs were reasonable; and (4) it was not responsible for the added expenses. WRB Corp. v. United States, 183 Ct.Cl. 409, 426 (1968) (citations omitted); accord Servidone Construction Corp. v. United States, 931 F.2d 860, 861 (Fed.Cir.1991). Based on his analysis, Mr. Cumine alleged that he identified fifteen separate quantifiable “items of critical delay.” Mr. Cumine may have used the phrase “critical delay” as a shorthand term to mean “critical path delay,” but even if he did so, the court does not know whether the “critical delays” he allegedly identified were found using his concept of “concurrent” critical delays or by some other method. If the latter, the “critical delays” axiomatically may or may not have been on the critical path. A discussion and analysis of specific delay claims follows. 1. Site Preparation Work Mr. Cumine alleged that the first critical delay occurred at the very outset of the contract. Plaintiff was prepared to begin work on September 23, 1985, but found that the job-site was “not ready” and that “[t]he Post Office required Mega to do considerable additional work in order to" }, { "docid": "23431614", "title": "", "text": "where the contractor itself, as in that case, was claiming that the price it had paid was not “reasonable”, in the sense that it was below fair market value, so that “there is an alleged disparity between ‘historical’ and ‘reasonable’ costs, the historical costs are presumed reasonable,” and “the burden would then be upon claimant to overcome the presumption of reasonableness.” Id., 324 F.2d at 519, 163 Ct.Cl. at 101-102. That the court does not construe such a “historical cost” presumption of reasonableness in an equitable adjustment situation, such as was involved in Bruce where the contractor was itself attempting to reject the reasonableness of its own costs, as carrying over in full force to a “total cost” damage contention is made evident by the cases of WRB Corp., et al. v. United States, supra; Turnbull, Inc. et al. v. United States, supra; Phillips Construction Co. v. United States, supra; Urban Plumbing & Heating Co. v. United States, supra; and Wunderlich Contracting Co. et al. v. United States, supra, all decided subsequent to Bruce, all rejecting the “total cost” method, and all reiterating or quoting with approval said of-cited statement from F. H. McGraw & Co., supra, which plaintiff argues was superseded by Bruce. For instance, in WRB Corp., the court stated: “This theory has never been favored by the court and has been tolerated only when no other mode was available and when the reliability of the supporting evidence was fully substantiated. [Citations omitted.] The acceptability of the method hinges on proof that (1) the nature of the particular losses make it impossible or highly impracticable to determine them with a reasonable degree of accuracy; (2) the plaintiff’s bid or estimate was realistic; (3) its actual costs were reasonable ; and (4) it was not responsible for the added expenses.” And the court went on to state that it was not satisfied “that plaintiff sufficiently proved the reasonableness of its estimates or its actual costs.” [Emphasis supplied.] 183 Ct.Cl. at 426. Thus, the court made clear that in such a case, the contractor’s obligation of carrying its burden of" }, { "docid": "19999255", "title": "", "text": "at 861. In other words, to the extent that the court modifies any of the four-prongs of the total cost test, the court has, in actuality, utilized the modified total cost method as opposed to the total cost method. Id. The theory behind the modified approach is that, in order to prevent the government from obtaining a windfall stemming from the plaintiff’s inability to satisfy all of the elements of the total cost method, the court will modify that test, so that the amount that would have been received by the plaintiff under the total cost method, is only the starting point from which the court will adjust the plaintiff’s recovery downward to reflect the inability to prove any of the aforementioned four elements. Id. at 862. See Boyajian, 191 Ct.Cl. at 247-48, 423 F.2d 1231; MacDougald Constr. Co. v. United States, 122 Ct.Cl. 210 (1952). Against this background, we shall now address, seriatim, each of the requisite four elements to the recovery of damages under the total cost method, and, if appropriate, the modified total cost method as well. (a) The Impracticability Of Proving Actual Losses Directly To prove this element, it must be appropriately established that the nature of plaintiff’s losses makes it highly impracticable to determine the amount of the actual losses with a reasonable degree of accuracy. Servidone, 931 F.2d at 861. On this record, we are satisfied, for several reasons, that the plaintiff has failed to meet its burden with respect to this prong of the test, in that: (1) plaintiff knew as early as the preconstruction conference that it had discovered a water differing site condition; (2) from that point in time, it memorialized by letter/memorandum to defendant each adverse circumstance stemming from the excess water that adversely affected its costs; (3) these historical facts are contained in 457 daily reports and approximately 26 letters to the Corps from plaintiff; (4) at all times pertinent herein, plaintiff had at its disposal, in evaluating additional costs, its bid estimate containing the costs of detailed items; (5) plaintiff was an experienced construction contractor having performed in" }, { "docid": "20646295", "title": "", "text": "“based on cost and not on fair market value” (id., 163 Ct. Cl. at 100-01, 324 F. 2d at 518), provided that such cost is reasonable. And in this connection, the court held that where the contractor itself, as in that case, was claiming that the price it had paid was not “reasonable,” in the sense that it was below fair market value, so that “there is an alleged disparity between ‘historical’ and ‘reasonable’ costs, the historical costs are presumed reasonable,” and “the burden would then be upon claimant to overcome the presumption of reasonableness.” Id., 163 Ct. Cl. at 101-02, 324 F. 2d at 519. That the court does not construe such a “historical cost” presumption of reasonableness in an equitable adjustment situation, such as was involved in Bruce where the contractor was itself attempting to reject the reasonableness of its own costs, as carrying over in full force to a “total cost” damage contention is made evident by the cases of WRB Corp., et al. v. United States, supra; Turnbull, Inc., et al. v. United States, supra; Phillips Construction Co. v. United States, supra; Urban Plumbing & Heating Co. v. United States, supra; and Wunderlich Contracting Co., et al. v. United States, supra, all decided subsequent to Bruce, all rejecting the “total cost” method, and all reiterating or quoting with approval said oft-cited statement from F. H. McGraw & Co., supra, which plaintiff argues was superseded by Bruce. For instance, in WEB Corp., the court stated: “This theory has never been favored by the court and has been tolerated only when no other mode was available and when the reliability of the supporting evidence was fully substantiated. [Citations omitted.] The acceptability of the method hinges on proof that (1) the nature of the particular losses make it impossible or highly impracticable to determine them with a reasonable degree of accuracy; (2) the plaintiff’s bid or estimate was realistic; (3) its actual costs were reasonable; and (4) it was not responsible for the added expenses.” And the court went on to state that it was not satisfied “that plaintiff" }, { "docid": "23431604", "title": "", "text": "* *.” 96 F.Supp. at 926, 119 Ct.Cl. at 559. MacDougald Construction Co. v. United States, 122 Ct.Cl. 210 (1952), also involved an equitable adjustment type of reimbursement resulting from plans and specifications changes. Here, too, the court refused to equate the recovery with the contractor’s “total loss” or “total cost.” Instead, it again adjusted such “loss” and “cost” by making allowances, in amounts shown by the record, for the contractor’s underbid and for costs incurred due to reasons other than the Government’s action which led to the increased expenditures. In F. H. McGraw & Co. v. United States, supra, decided shortly after Great Lakes Dredge and MacDougald Construction Co., the court, in rejecting the proffered “total cost” damage proof, pointed out that what was involved in Great Lakes Dredge was a contract clause providing that “if unforeseen conditions were encountered, ‘any increase or decrease in cost’ should be adjusted.” 130 F.Supp. at 400, 131 Ct.Cl. at 511. The court, after stating that “[t]his [total cost] method of proving damage is by no means satisfactory, because, among other things, it assumes plaintiff’s costs were reasonable and that plaintiff was not responsible for any increases in cost, and because it assumes plaintiff’s bid was accurately computed, which is not always the case, by any means” (id..), flatly stated that its opinion in Great Lakes Dredge “was not intended to give approval to this method of proving damage, except in an extreme case and under proper safeguards,” and that “[a]pproval was not given to proof of damages for breach of contract by showing the difference in plaintiff’s bid and his costs on the entire job.” It is true we were forced in that case by the lack of other proof to compute the increased cost resulting from the unforeseen conditions encountered by taking plaintiff’s actual costs incurred on account thereof and deducting therefrom certain costs for whieh plaintiff was responsible and then deducting from the balance the average of all bids and the defendant’s estimate of the cost of the work. But by so doing we did not intend to give approval" }, { "docid": "23431615", "title": "", "text": "rejecting the “total cost” method, and all reiterating or quoting with approval said of-cited statement from F. H. McGraw & Co., supra, which plaintiff argues was superseded by Bruce. For instance, in WRB Corp., the court stated: “This theory has never been favored by the court and has been tolerated only when no other mode was available and when the reliability of the supporting evidence was fully substantiated. [Citations omitted.] The acceptability of the method hinges on proof that (1) the nature of the particular losses make it impossible or highly impracticable to determine them with a reasonable degree of accuracy; (2) the plaintiff’s bid or estimate was realistic; (3) its actual costs were reasonable ; and (4) it was not responsible for the added expenses.” And the court went on to state that it was not satisfied “that plaintiff sufficiently proved the reasonableness of its estimates or its actual costs.” [Emphasis supplied.] 183 Ct.Cl. at 426. Thus, the court made clear that in such a case, the contractor’s obligation of carrying its burden of submitting satisfactory proof of damage also includes the burden of submitting “fully substantiated * * * supporting evidence” that “its actual costs were reasonable.” Id. Consequently, it is clear that a contractor does not meet such burden by simply proving what its total expenditures were, and then resting on a presumption of reasonableness as was applied by the court in the quite peculiar equitable adjustment circumstances involved in the Bruce Construction Corp. case. In situations where the court has rejected the “total cost” method of proving damages, but where the record nevertheless contains reasonably satisfactory evidence of what the damages are, computed on an acceptable basis, the court has adopted such other evidence, Christensen Construction Co. v. United States, supra; Lilley-Ames Co., Inc. v. United States, supra; F. H. McGraw & Co. v. United States, supra; Turnbull, Inc. et al. v. United States, supra; or where such other evidence, although not satisfactory in and of itself upon which to base a judgment, has nevertheless been considered at least sufficient upon which to predicate a “jury" }, { "docid": "23431611", "title": "", "text": "adjustment, with the fourth (Oliver-Finnie) involving only a labor computation which constituted but one component of the damages. It was not, in the usual “total cost” sense, based upon total contract expenditures. None of such cases were comparable to the instant one, in which several breaches are alleged but consolidated for damage purposes into a claimed unadjusted “total cost” recovery. The above review indicates that the court has never allowed such a recovery in such a case. On the other hand, it has consistently insisted on a showing that “the excess costs claimed must be tied in to defendant’s breaches” (J. D. Hedin Construction Co., supra, 347 F.2d at 259, 171 Ct.Cl. at 108), especially where, as here, there is an insufficient showing that such a direct damage calculation could not as a practical matter be made. Nor does the mere fact that plaintiff’s books and records do not, in segregated form, show the amounts of the increased costs attributable to the breaches give it automatic license to use the “total cost” method. Contractors rarely keep their books in such fashion. Such failure, however, normally does not prevent the submission of reasonably satisfactory proof of increased costs incurred during certain contract periods or flowing from certain events based, for instance, on acceptable cost allocation principles or on expert testimony. See Turnbull, Inc. et al. v. United States, supra, 389 F.2d at 1014-1015, 180 Ct.Cl. at 1024-1025. Finally, plaintiff says that although in the past one of the principal grounds for criticizing the “total cost” method has been that, as stated in F. H. McGraw & Co. v. United States, supra, 130 F.Supp. at 400, 131 Ct.Cl. at 511, “it as sumes plaintiff’s costs were reasonable * * * which is not always the case, by any means,” nevertheless this court, in Bruce Construction Corp. et al. v. United States, supra, recently adopted a different view, i. e., that a contractor’s expenditures made in the performance of the contract would be presumed to be reasonable. However, the issue in Bruce in no way involved the application of the “total cost” method" }, { "docid": "19999253", "title": "", "text": "where no other means of accurately computing damages are available. J.D. Hedin v. United States, 171 Ct.Cl. 70, 347 F.2d 235 (1965); G.M. Shupe, Inc. v. United States, 5 Cl.Ct. 662, 676 (1984); Wunderlich Contracting Co. v. United States, 173 Ct.Cl. 180, 193, 351 F.2d 956 (1965). That is to say, the total cost method is only utilized in extreme cases where it is difficult or impossible to identify specific increases in costs with the actions of the defendant. Phillips Construction Co. v. United States, 184 Ct.Cl. 249, 394 F.2d 834 (1968). In light of these constrictions, the courts, as a safeguard against the utilization of the total cost method, have developed a set of criteria which the plaintiff must establish in order to secure a recovery of damages under this approach. In short, the acceptability of said methodology hinges on plaintiff’s proof of — (i) the impracticability of proving actual losses directly; (ii) the reasonableness of its bid; (iii) the reasonableness of its actual costs; and (iv) the lack of responsibility for the added costs. Servidone, 931 F.2d at 861; Boyajian v. United States, 191 Ct.Cl. 233, 246-254, 423 F.2d 1231 (1970); WRB Corporation v. United States, 183 Ct.Cl. 409, 426 (1968). In general, the Claims Court has not only strictly adhered to this four-part conjunctive test, but it has also held that the plaintiff has the burden of proving its damages by a preponderance of the evidence. Teledyne McCormick-Selph v. United States, 218 Ct.Cl. 513, 517, 588 F.2d 808 (1978). Thus, if plaintiff cannot prove all of the elements, or if the defendant can disprove at least one of them, the court will deny total cost recovery. See Servidone, 931 F.2d at 862. Such a circumstance, however, is not fatal to a recovery of damages inasmuch as it may give rise to the court’s use of an alternative, i.e., the modified total cost method. Id. The modified total cost method is simply the total cost method modified or adjusted for any deficiencies in the plaintiff’s proof in satisfying the four requirements of said method. See Servidone, 931 F.2d" }, { "docid": "19999254", "title": "", "text": "costs. Servidone, 931 F.2d at 861; Boyajian v. United States, 191 Ct.Cl. 233, 246-254, 423 F.2d 1231 (1970); WRB Corporation v. United States, 183 Ct.Cl. 409, 426 (1968). In general, the Claims Court has not only strictly adhered to this four-part conjunctive test, but it has also held that the plaintiff has the burden of proving its damages by a preponderance of the evidence. Teledyne McCormick-Selph v. United States, 218 Ct.Cl. 513, 517, 588 F.2d 808 (1978). Thus, if plaintiff cannot prove all of the elements, or if the defendant can disprove at least one of them, the court will deny total cost recovery. See Servidone, 931 F.2d at 862. Such a circumstance, however, is not fatal to a recovery of damages inasmuch as it may give rise to the court’s use of an alternative, i.e., the modified total cost method. Id. The modified total cost method is simply the total cost method modified or adjusted for any deficiencies in the plaintiff’s proof in satisfying the four requirements of said method. See Servidone, 931 F.2d at 861. In other words, to the extent that the court modifies any of the four-prongs of the total cost test, the court has, in actuality, utilized the modified total cost method as opposed to the total cost method. Id. The theory behind the modified approach is that, in order to prevent the government from obtaining a windfall stemming from the plaintiff’s inability to satisfy all of the elements of the total cost method, the court will modify that test, so that the amount that would have been received by the plaintiff under the total cost method, is only the starting point from which the court will adjust the plaintiff’s recovery downward to reflect the inability to prove any of the aforementioned four elements. Id. at 862. See Boyajian, 191 Ct.Cl. at 247-48, 423 F.2d 1231; MacDougald Constr. Co. v. United States, 122 Ct.Cl. 210 (1952). Against this background, we shall now address, seriatim, each of the requisite four elements to the recovery of damages under the total cost method, and, if appropriate, the modified" }, { "docid": "23431616", "title": "", "text": "submitting satisfactory proof of damage also includes the burden of submitting “fully substantiated * * * supporting evidence” that “its actual costs were reasonable.” Id. Consequently, it is clear that a contractor does not meet such burden by simply proving what its total expenditures were, and then resting on a presumption of reasonableness as was applied by the court in the quite peculiar equitable adjustment circumstances involved in the Bruce Construction Corp. case. In situations where the court has rejected the “total cost” method of proving damages, but where the record nevertheless contains reasonably satisfactory evidence of what the damages are, computed on an acceptable basis, the court has adopted such other evidence, Christensen Construction Co. v. United States, supra; Lilley-Ames Co., Inc. v. United States, supra; F. H. McGraw & Co. v. United States, supra; Turnbull, Inc. et al. v. United States, supra; or where such other evidence, although not satisfactory in and of itself upon which to base a judgment, has nevertheless been considered at least sufficient upon which to predicate a “jury verdict” award, it has rendered a judgment based on such a verdict. WRB Corp., et al. v. United States, supra, 183 Ct.Cl. at 425-426. Cf. Phillips Construction Co. v. United States, supra, 394 F.2d at 842, 184 Ct.Cl. at 263. However, where the record is blank with respect to any such other alternative evidence, the court has been obliged to dismiss the claim for failure of damage proof, regardless of the merits. Roberts v. United States, supra, 357 F.2d at 943-944, 174 Ct.Cl. at 946, 949; Snyder-Lynch Motors, Inc. v. United States, supra, 292 F.2d at 910, 154 Ct.Cl. at 480; Wunderlich Contracting Co. et al. v. United States, supra, 351 F.2d at 964-965, 173 Ct.Cl. at 192-193. Cf. River Construction Corp. v. United States, supra, 159 Ct.Cl. at 259. The instant case falls in the latter category. Accordingly, plaintiff’s three causes of action based upon the Modulator contract must be dismissed. THE INTERVAL AND DWELL TESTER CONTRACT CLAIMS Fourth Cause of Action Paragraph (a) of Part II of the contract Schedule, which part was" }, { "docid": "13311522", "title": "", "text": "River Constr. Corp. v. United States, 159 Ct.Cl. 254, 270-71, 1962 WL 9302 (1962)). Plaintiff must progress to proving that the actual costs were reasonable in light of the government-directed changes about which plaintiff complains. Plaintiff failed to carry its burden on this issue. Although plaintiff offered much evidence that its claimed costs were actually incurred, little evidence was introduced that these costs were reasonable. Costs associated with actual changes may well be reasonable; however, additional, actual costs related to asserted changes that were not changes cannot be reasonable because they cannot be levied against the Government. These latter costs are merely overruns that any contractor with a fixed-price contract would be required to absorb. The court is unable to conclude that overall actual costs were reasonable. Some actual costs were reasonable, while others were not reasonable. This mixed finding raises doubt as to whether a modified total cost recovery is appropriate. 4) Lack of responsibility for additional costs Plaintiff claims a myriad of constructive changes and breaches of the duty to cooperate. Plaintiff proved some of these claims, but the court also has found that some of the putative constructive changes were not actual changes. GDS’s expenditures related to these items were the responsibility of GDS. Because GDS bears some responsibility for the additional costs, which go beyond the decrement taken in its modified total cost claim, the court cannot award damages for those claims. The results are mixed with respect to each of the four prerequisites for a modified total cost award. It was not impracticable to identify and track some of GDS’s costs. The reduction in the BAFO decreased visibility, frustrating a determination of reasonableness. Some costs were reasonably incurred, while others were not. GDS was responsible for some of the increased costs. Because such mixed findings are derived from the record developed at trial, a modified total cost recovery is not appropriate. Even if the court were to find a modified total cost approach appropriate, GDS must justify its decrement that accounts for contractor-caused costs. To modify its total costs, plaintiff made a decrement of $865,721.00" }, { "docid": "18137787", "title": "", "text": "and administrative expenses were specifically reimbursable to the extent that they related to CPFF contract work, but not so as to the fixed price contracts, it was necessary for the plaintiff to adopt a method by which each contract’s fair share of the total G&A burden could be constructively determined. In addition to a standard record-keeping provision expressly sanctioning the contractor’s accounting practices provided that they conform to generally accepted accounting principles, plaintiff’s CPFF contracts typically included a provision defining allowable cost in terms of the standards and criteria set forth in the applicable portion of the Armed Services Procurement Regulations. As to the G&A items here involved, and the means of allocating them, the governing principles are found in Part IS of the Regulations, 32 C.F.R. § 15.203 (a), (b), (c), and (d) (Rev. as of January 1, 1961): Sec. 15.203 Indirect costs. (a) An indirect cost is one which, because of its in-currence for common or joint objectives, is not readily subject to treatment as a direct cost. Minor direct cost items may be considered to be indirect costs for reasons of practicality. After direct costs have been determined and charged directly to the contract or other work as appropriate, indirect costs are those remaining to be allocated to the several classes of work. (b) Indirect costs shall be accumulated by logical cost groupings with due consideration of the reasons for incurring the costs. Each grouping should he determined so as to permit distribution of the grouping on the basis of the benefits accruing to the severed cost objectives. Commonly, manufacturing overhead, selling expenses, and general and administrative expenses are separately grouped. * * * (c) Each cost grouping shall be distributed to the appropriate cost objectives. This necessitates the selection of a distribution base common to all cost objectives to which the grouping is to be allocated. The base should be selected so as to permit allocation of the grouping on the basis of the benefits accruing to the several cost objectives. * * * (d) The method of allocation of indirect costs must be based on" } ]

[ { "docid": "6938939", "title": "", "text": "expenses of traveling to Las Vegas, and the respondent disallowed the deductions for each year. The petitioner filed timely petitions with this Court challenging the disallowance for each of such years. In his answer, the respondent, after denying certain allegations in the petition, affirmatively pleaded collateral estoppel; he alleged that the controlling facts and law for each such year were the same as in James T. Shiosaki, supra. In support of his motion for summary judgment, the respondent argued that the facts were the same in 1968, 1969, and 1971 as in 1967 and that the petitioner is collaterally estopped from challenging the deficiencies determined for those years. At the hearing on the motion, the petitioner, who was acting without the assistance of counsel, expressed a desire to have a trial in these cases; he indicated a wish to attempt to convince a different judge that a different interpretation of the facts and law should 'be reached in his case. Rule 121 provides: (a) General: Either party may move, with or without supporting affidavits, for a summary adjudication in his favor upon all or any part of the legal issues in controversy. * ⅜ * (b) Motion and Proceedings Thereon: * ⅜ * A decision shall thereafter be rendered if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law. A partial summary adjudication may be made which does not dispose of all the issues in the case. ⅝⅜ ⅜ ⅝ sjs ‡ ⅜: (d) Norm of affidavits; Further Testimony; Defense Required: * * * When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise porvided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, a" } ]

[ { "docid": "19358728", "title": "", "text": "summary judgment because all of the remaining issues relate to nonpartnership items over which the Court lacks jurisdiction under section 6226(f). In the alternative, petitioner argues that the valuation misstatement penalties imposed under section 6662(a), (b)(3), (e), and (h) are inapplicable as a matter of law because the penalties do not relate to an error in “valuation” but relate to respondent’s determination that Petaluma and/or the transactions it purportedly entered into should be disregarded. Discussion Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). Summary judgment may be granted where there is no genuine issue of any material fact and a decision may be rendered as a matter of law. Rule 121(a) and (b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994). The parties agree that this case is ripe for summary judgment because both parties raise only questions of law. Petitioner stipulated: “if the Court determines that it has jurisdiction in this case, petitioner does not intend to contest any of the issues raised in the FPAA other than the issue of whether the valuation misstatement penalty would apply in this case”. When a party explicitly states that he does not intend to contest an issue, we have found it appropriate to deem the issue conceded and not require the other party to prove the issue affirmatively. Tan Xuan Bui v. Commissioner, T.C. Memo. 2007 — 104; DeCaprio v. Commissioner, T.C. Memo. 1996-367. Furthermore, stipulations are treated as conclusive and binding admissions by the parties unless otherwise permitted by the Court. Rule 91(e); Stamos v. Commissioner, 87 T.C. 1451, 1454-1455 (1986). Accordingly, with the exception of the determinations of the valuation penalties, if we find that we have jurisdiction over a determination made in the FPAA, we shall treat the issue as conceded by petitioner, grant respondent’s motion for summary judgment on the issue, and deny petitioner’s cross-motion for summary judgment on the issue. Petitioner’s primary argument is that all of the adjustments and determinations in the" }, { "docid": "18142959", "title": "", "text": "6231(g)(2) applies because the IRS determined that the normal deficiency procedures applied, and that the IRS’ determination was reasonable. This briefing turned into a sideshow. Respondent admitted to making erroneous statements on the record regarding what happened during the course of the examination, and the Bedrosians went on the offensive. In their answering brief, the Bedrosians accused respondent of taking “deliberately false and fraudulent actions and * * * [making] false and fraudulent representations to the Court since the outset of this case.” Respondent subsequently filed a response to the Bedrosians’ allegations of fraud, in which respondent “apologize[d] to the Court and to Petitioners’ Counsel for not clearly identifying and explaining the ostensible conflict between the Memorandum Brief and respondent’s prior representations.” The Bedrosians then filed a reply to respondent’s response to the allegations of fraud, in which they contend that the “implausibility and incongruity of respondent’s statements and actions with respect to respondent’s current position, combined with respondent’s previous misrepresentations, make the current version of the ‘facts’ impossible to believe.” Ultimately, this sideshow has no bearing on this case. Discussion I. Summary Judgment Summary judgment may be granted where the pleadings and other materials show that there is no genuine dispute as to any material fact and that a decision may be rendered as a matter of law. Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994). The burden is on the moving party (in this case, the Bedrosians) to demonstrate that there is no genuine dispute as to any material fact and that they are entitled to judgment as a matter of law. FPL Grp., Inc. & Subs. v. Commissioner, 116 T.C. 73, 74—75 (2001). In considering a motion for summary judgment, evidence is viewed in the light most favorable to the nonmoving party. Bond v. Commissioner, 100 T.C. 32, 36 (1993). The nonmoving party may not rest upon the mere allegations or denials of his or her pleading but must set forth specific facts showing there is a genuine dispute for trial. Sundstrand Corp. v. Commissioner, 98 T.C." }, { "docid": "11587789", "title": "", "text": "caption of this case. Further, respondent’s motion to dismiss for lack of prosecution will be denied. II. Motion for Summary Judgment Respondent has also filed a motion for summary judgment pursuant to Rule 121(a). Respondent argues for summary judgment on the grounds that the Appeals officer properly exercised her discretion in rejecting the proposed installment agreement and sustaining the proposed collection action because Mr. Giamelli was not in compliance with his current tax obligations. Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). Summary judgment may be granted where there is no genuine issue of any material fact and a decision may be rendered as a matter of law. Rule 121(a) and (b); see Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994). The moving party bears the burden of proving that there is no genuine issue of material fact, and factual inferences will be read in a manner most favorable to the party opposing summary judgment. Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985). This collection review proceeding was begun pursuant to section 6320, which provides for Tax Court review of respondent’s administrative determinations to proceed with the collection of tax liabilities via liens. Where the validity of the underlying tax liability is at issue in a collection review proceeding, the Court will review the matter de novo. Davis v. Commissioner, 115 T.C. 35, 39 (2000). However, where the underlying liability is not at issue, we review the Appeals officer’s determinations regarding the collection action for an abuse of discretion. Goza v. Commissioner, 114 T.C. 176 (2000). Mr. Giamelli did not challenge the validity of the underlying tax liability, and thus this Court would pursuant to precedent review respondent’s administrative determinations for abuse of discretion; that is, whether the determinations were arbitrary, capricious, or without sound basis in fact or law. See Sego v. Commissioner, 114 T.C. 604, 610 (2000); Woodral v. Commissioner, 112 T.C. 19, 23 (1999). Internal Revenue Service guidelines require a taxpayer to be current" }, { "docid": "17119147", "title": "", "text": "6330(d)(1) depends on the issuance of a valid notice of determination and a timely petition for review. Lunsford v. Commissioner, 117 T.C. 159, 165 (2001). Section 6330(d)(1) provides that a person may appeal a notice of determination by filing a petition within 30 days of the notice. Sec. 6330(d)(1). We lack jurisdiction to review petitioner’s claim under section 6330. Petitioner filed a petition with this Court later than 30 days after the notice of determination. We have held that the 30-day period provided by section 6330(d)(1) is jurisdictional and cannot be extended. McCune v. Commissioner, 115 T.C. 114, 117 (2000). However, petitioner raised a spousal defense in the Appeals Office proceeding before the Commissioner made a final determination. Sec. 6330(c)(2)(A)(i); sec. 301.6330-1(e)(2), Proced. & Admin. Regs. In the notice of determination, respondent determined that petitioner was not entitled to relief under section 6015 because she did not file a joint return. The timeliness of the petition, insofar as it seeks review of the administrative denial of section 6015 relief, is, therefore, dependent upon section 6015(e)(1). Under this section, we have jurisdiction to review respondent’s determination as to section 6015 relief because petitioner filed her petition within 90 days of the notice of determination. II. Motion for Partial Summary Judgment Respondent moved for partial summary judgment on the issue of whether petitioner is eligible for relief under section 6015. Respondent argues that petitioner is not entitled to relief under section 6015 because she did not file a joint tax return. Rule 121(a) provides that either party may move for summary judgment upon all or any part of the legal issues in controversy. Full or partial summary judgment may be granted only if it is demonstrated that no genuine issue exists as to any material fact and a decision may be entered as a matter of law. See Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994). A. Relief Under Section 6015(b) and (c) Relief is not available to petitioner under section 6015(b) and (c) because petitioner did not file a joint return." }, { "docid": "17119148", "title": "", "text": "Under this section, we have jurisdiction to review respondent’s determination as to section 6015 relief because petitioner filed her petition within 90 days of the notice of determination. II. Motion for Partial Summary Judgment Respondent moved for partial summary judgment on the issue of whether petitioner is eligible for relief under section 6015. Respondent argues that petitioner is not entitled to relief under section 6015 because she did not file a joint tax return. Rule 121(a) provides that either party may move for summary judgment upon all or any part of the legal issues in controversy. Full or partial summary judgment may be granted only if it is demonstrated that no genuine issue exists as to any material fact and a decision may be entered as a matter of law. See Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994). A. Relief Under Section 6015(b) and (c) Relief is not available to petitioner under section 6015(b) and (c) because petitioner did not file a joint return. Both subsections explicitly require that a joint return be filed for relief to be granted. Sec. 6015(b) and (c). B. Relief Under Section 6015(f) On its face, section 6015(f) does not require that a joint return be filed in order for equitable relief to be granted under that section. As directed by section 6015(f), the Commissioner uses procedures under Rev. Proc. 2000-15, 2000-1 C.B. 447 (the revenue procedure), to determine whether an individual qualifies for relief under that section. Section 4.01 of the revenue procedure lists seven threshold conditions, including the filing of a joint return, that must be satisfied before the Commissioner will consider a request for relief under section 6015(f). The legislative history of section 6015 further demonstrates that Congress intended a joint return requirement to apply to section 6015(f). The conference agreement accompanying the enactment of section 6015(f) contemplates that a joint return be filed as a prerequisite for the grant of equitable relief. H. Conf. Rept. 105-599, at 254 (1998), 1998-3 C.B. 747, 1008. The agreement stated: The conference agreement does" }, { "docid": "17795647", "title": "", "text": "the cost of those benefits recognized in the period. FASB 81 offers examples of appropriate disclosure statements. When benefits are annually funded based on estimated accruals, a proper disclosure could state: “The estimated cost of such benefits is accrued over the working lives of those employees expected to qualify for such benefits as a level percentage of their payroll costs”. Alternatively, when benefit costs are expensed as paid, a proper disclosure could state: “The cost of retiree health care and life insurance benefits is recognized as an expense as cláims are paid”. Petitioner’s disclosure for retiree health and life insurance benefits for its 1986 year stated: “The cost of retiree health coverage is recognized as an expense when claims are paid. The cost of life insurance benefits is recognized as an expense as premiums are paid.” The parties have stipulated that the addition to the account limit for incurred but unpaid claims for the VEBA trust’s year ended November 30, 1987, if based on the safe harbor limits of section 419A(c)(5), is $11,193,974 (plus $731,907 of related administrative costs), and if not based on the safe harbor limits, is $5,290,729 (plus $261,232 of related administrative costs). Discussion Summary judgment may be granted if the pleadings and other materials demonstrate that no genuine issue exists as to any of the material facts and that a decision may be rendered as a matter of law. Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994); Colestock v. Commissioner, 102 T.C. 380, 381 (1994). In the instant case, each party has moved for partial summary judgment. Neither party argues that there is any material issue of fact remaining if we decide the three issues in the manner in which we do. Legal Framework In sections 419 and 419A, enacted as part of the Deficit Reduction Act of 1984 (DEFRA), Pub. L. 98-369, 98 Stat. 494, Congress limited the deductibility of contributions to welfare benefit funds (WBF’s) in order to restrict an employer from taking a current deduction for welfare benefits to be provided in the" }, { "docid": "4294888", "title": "", "text": "OPINION RUWE, Judge: This matter is before the Court on respondent’s motion for partial summary judgment filed pursuant to Rule 121. The sole issue presented is whether petitioner is barred by the so-called “one claim” rule of section 6427(i)(l) from obtaining a credit under section 34 for amounts of Federal excise taxes paid on fuels. Background FPL Group, Inc., is a corporation organized and existing under the laws of the State of Florida with its principal office located in Juno Beach, Florida. FPL Group, Inc. & Subsidiaries (petitioner) filed consolidated Federal income tax returns for the years 1988 through 1992. Petitioner attached to each return a Form 4136, Computation of Credit for Federal Tax on Fuels. Form 4136 is used to claim credit for Federal excise tax paid on fuels sold or used during the period of the claim. On its Federal income tax returns for those years, petitioner claimed credits for Federal taxes on fuels as follows: Year Credit 1988 . $279,732 1989 . 233,053 1990 . 275,303 1991 . 391,516 1992 . 332,568 In its second amended petition, petitioner alleged that respondent erred in failing to allow additional fuel tax credits for vehicles which are not “highway use” vehicles in the following amounts: Year Credit 1988 . $135,194 1989 . 136,840 1990 . 143,340 1991 . 202,096 1992 . 215,649 These amounts are in addition to the amounts claimed as credits on petitioner’s original Federal income tax returns for those years. Discussion I. Summary Judgment Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials. See Northern Ind. Pub. Serv. Co. v. Commissioner, 101 T.C. 294, 295 (1993); Shiosaki v. Commissioner, 61 T.C. 861, 862 (1974). Rule 121(a) provides that either party may move for summary judgment upon all or any part of the legal issues in controversy. Full or partial summary judgment is appropriate where there is no genuine issue as to any material fact and a decision may be rendered as a matter of law. See Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir." }, { "docid": "17182767", "title": "", "text": "matter of law sustaining the notice of determination dated June 11, 2002. Respondent’s position is that section 7521(a)(1), which authorizes taxpayers to record “in-person interviews”, is not applicable to hearings pertaining to collection actions under section 6320 or 6330. Petitioner filed an objection to respondent’s motion. This matter was called for hearing at the Court’s motions session held in Washington, D.C. Counsel for respondent appeared at the hearing and was heard. Although there was no appearance by or on behalf of petitioner at the hearing, he filed with the Court a written statement pursuant to Rule 50(c) opposing respondent’s motion on the ground that he was denied his request to audio record his section 6330 hearing with the Appeals Office under the provisions of section 7521(a)(1). Discussion Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials. See Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). Summary judgment may be granted with respect to all or any part of the legal issues in controversy “if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law.” Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994). Section 7521(a)(1) expressly states that, upon the advance request of a taxpayer, an Internal Revenue Service officer or employee shall permit the taxpayer to make an audio recording of “any in-person interview * * * relating to the determination or collection of any tax”. Neither section 7521(a)(1) nor the legislative history directly and clearly defines or otherwise describes the term “in-person interview”. Where a term is not defined in the statute, it is appropriate to accord the term its “ordinary meaning”. Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 833 (9th Cir. 1996). And when there is no indication that Congress intended a specific legal meaning for the term, courts may look to sources such as dictionaries for a" }, { "docid": "17795648", "title": "", "text": "of related administrative costs), and if not based on the safe harbor limits, is $5,290,729 (plus $261,232 of related administrative costs). Discussion Summary judgment may be granted if the pleadings and other materials demonstrate that no genuine issue exists as to any of the material facts and that a decision may be rendered as a matter of law. Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994); Colestock v. Commissioner, 102 T.C. 380, 381 (1994). In the instant case, each party has moved for partial summary judgment. Neither party argues that there is any material issue of fact remaining if we decide the three issues in the manner in which we do. Legal Framework In sections 419 and 419A, enacted as part of the Deficit Reduction Act of 1984 (DEFRA), Pub. L. 98-369, 98 Stat. 494, Congress limited the deductibility of contributions to welfare benefit funds (WBF’s) in order to restrict an employer from taking a current deduction for welfare benefits to be provided in the future. Section 419 provides, in relevant part, the following: SEC. 419. TREATMENT OF FUNDED WELFARE BENEFIT PLANS. (a) General Rule. — Contributions paid or accrued by an employer to a welfare benefit fund— (1) shall not be deductible under this chapter, but (2) if they would otherwise be deductible, shall (subject to the limitation of subsection (b)) be deductible under this section for the taxable year in which paid. (b) Limitation. — The amount of the deduction allowable under subsection (a)(2) for any taxable year shall not exceed the welfare benefit fund’s qualified cost for the taxable year. (c) Qualified Cost. — For purposes of this section— (1) In general. — Except as otherwise provided in this subsection, the term “qualified cost” means, with respect to any taxable year, the sum of— (A) the qualified direct cost for such taxable year, and (B) subject to the limitation of section 419A(b), any addition to a qualified asset account for the taxable year. (2) Reduction for funds after-tax income. — In the case of any welfare benefit" }, { "docid": "4294889", "title": "", "text": "In its second amended petition, petitioner alleged that respondent erred in failing to allow additional fuel tax credits for vehicles which are not “highway use” vehicles in the following amounts: Year Credit 1988 . $135,194 1989 . 136,840 1990 . 143,340 1991 . 202,096 1992 . 215,649 These amounts are in addition to the amounts claimed as credits on petitioner’s original Federal income tax returns for those years. Discussion I. Summary Judgment Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials. See Northern Ind. Pub. Serv. Co. v. Commissioner, 101 T.C. 294, 295 (1993); Shiosaki v. Commissioner, 61 T.C. 861, 862 (1974). Rule 121(a) provides that either party may move for summary judgment upon all or any part of the legal issues in controversy. Full or partial summary judgment is appropriate where there is no genuine issue as to any material fact and a decision may be rendered as a matter of law. See Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994). Respondent, as the moving party, bears the burden of proving that no genuine issue exists as to any material fact and that he is entitled to judgment as a matter of law. See Bond v. Commissioner, 100 T.C. 32, 36 (1993); Naftel v. Commissioner, 85 T.C. 527, 529 (1985). In deciding whether to grant summary judgment, the factual materials and the inferences drawn from them must be considered in the light most favorable to the non-moving party. See Bond v. Commissioner, supra at 36; Naftel v. Commissioner, supra at 529. In the instant case, there is no genuine issue as to any of the material facts that we have set forth in the background section of this opinion. II. Sections 6427 and 34 Respondent argues that petitioner is making a second claim under section 6427 and that the so-called one claim rule contained in section 6427(i)(l) acts as a bar to petitioner’s claim for credit. Petitioner argues that its claim for credit is being made under section 34 and that the “one claim” rule" }, { "docid": "18142960", "title": "", "text": "no bearing on this case. Discussion I. Summary Judgment Summary judgment may be granted where the pleadings and other materials show that there is no genuine dispute as to any material fact and that a decision may be rendered as a matter of law. Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994). The burden is on the moving party (in this case, the Bedrosians) to demonstrate that there is no genuine dispute as to any material fact and that they are entitled to judgment as a matter of law. FPL Grp., Inc. & Subs. v. Commissioner, 116 T.C. 73, 74—75 (2001). In considering a motion for summary judgment, evidence is viewed in the light most favorable to the nonmoving party. Bond v. Commissioner, 100 T.C. 32, 36 (1993). The nonmoving party may not rest upon the mere allegations or denials of his or her pleading but must set forth specific facts showing there is a genuine dispute for trial. Sundstrand Corp. v. Commissioner, 98 T.C. at 520. II. Conversion Under Section 6223(e) The Bedrosians’ motion for summary judgment focuses on section 6223(e). Section 6223(e) provides alternate rules for when the IRS fails to issue certain notices within certain time constraints. More specifically, the IRS is required to issue an NBAP at least 120 days before it issues an FPAA. Sec. 6223(d)(1). The failure to allow sufficient time between the NBAP and the FPAA does not invalidate either notice. Starlight Mine v. Commissioner, T.C. Memo. 1991-59 n.3 (“Petitioners also contend that the FPAA was invalid because not all the notice partners were sent copies of the FPAA. However, see section 6223(e) for a notice partner’s rights in such a situation; there is no provision therein for invalidating an FPAA sent to the TMP.”). Instead, the failure gives rise to statutory rights under section 6223(e). The specific remedy afforded to the taxpayer differs depending on whether the proceeding is ongoing at the time the IRS mails notice to the taxpayer. Compare sec. 6223(e)(2), with id. para. (3). A. Section 6223(e)(2) — Proceedings" }, { "docid": "19182720", "title": "", "text": "Petitioners timely petitioned this Court. At the time the petition was filed, petitioners resided in Colorado. Respondent moved for partial summary judgment. Petitioners also moved for partial summary judgment. Discussion Respondent’s motion for partial summary judgment and petitioners’ cross-motion dispute (i) whether petitioners’ State tax credits were capital assets, (ii) whether the sales resulted in long-term or short-term capital gains, and (iii) the amount of basis, if any, petitioners had in those credits. Respondent contends and petitioners do not contend otherwise that petitioners’ receipt of State tax credits as a result of their conservation easement contribution was neither a sale or exchange of the easement nor a quid pro quo transaction. For our discussion we accept those deemed concessions. A. Summary Judgment Rule 121(a) allows a party to move “for a summary adjudication in the moving party’s favor upon all or any part of the legal issues in controversy.” Summary judgment is appropriate “if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law.” Rule 121(b). Facts are viewed in the light most favorable to the nonmoving party. Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985). The moving party bears the burden of demonstrating that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994). The Court has considered the pleadings and other materials of record and concludes that as to the points of law at issue here there is no genuine issue of material fact. Whether petitioners’ transferable State tax credits are capital assets and what basis, if any, and the holding period petitioners have in their State tax credits are novel legal questions appropriate for decision by summary judgment. B. Character of Gain Capital gains are derived from the sale or exchange of capital assets. Sec. 1222. Section 1221" }, { "docid": "23135719", "title": "", "text": "OPINION Hamblen, Judge: Respondent determined the following deficiencies in petitioners' income taxes for 1979, 1980, 1981, and 1982 (hereinafter sometimes referred to collectively as. the years in suit): Year Amount of deficiency 1979 . $13,674,981 1980 . 28,541,936 1981 . 27,099,275 1982 . 18,461,344 Respondent also determined that petitioners are liable for increased interest under section 6621(c), formerly section 6621(d), on the basis that the deficiencies attributable to the section 482 issue also at issue in these cases constituted substantial underpayments attributable to tax-motivated transactions. However, these issues are not before us at this time. All section references are to the Internal Revenue Code in effect for the taxable years in issue, unless otherwise noted. All Rule references are to the Tax Court Rules of Practice and Procedure, unless otherwise indicated. This matter is before the Court on respondent's motions for partial summary judgment filed pursuant to Rule 121. The issue which respondent seeks to have adjudicated is whether, as a matter of law, section 1481 does not apply to certain payments petitioners made to the Government in years after the years in suit. Summary judgment is appropriate if the pleadings and other materials show that there is no genuine issue as to any material fact and a decision may be rendered as a matter of law. Rule 121(b); Naftel v. Commissioner, 85 T.C. 527, 529 (1985). A partial summary adjudication may be made which does not dispose of all the issues in the case. Rule 121(b). The nonmoving party cannot rest upon the allegations or denials in his pleadings, but must “set forth specific facts showing that there is a genuine issue for trial.” Dahlstrom v. Commissioner, 85 T.C. 812, 820-821 (1985); Rule 121(d). The moving party, however, bears the burden of proving that no genuine issue exists as to any material fact and that he is entitled to judgment on the substantive issues as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Espinoza v. Commissioner, 78 T.C. 412, 416 (1982). In deciding whether to grant summary judgment, we view the factual materials and" }, { "docid": "19358727", "title": "", "text": "FPAA: Other income; tax-exempt interest income; distributions— money; distributions — property other than money; capital contributions; assets — cash; liabilities and capital — other current liabilities; and partners’ capital accounts. Petitioner further stipulated that his position is that the Court lacks jurisdiction to consider the remaining issues raised in the FPAA, which include the partners’ aggregate adjusted basis in the partnership (or outside basis) and the determinations in the explanation of items, including the penalties. However, petitioner also stipulated that he would not contest any issues raised by the FPAA over which the Court has jurisdiction except for the issue of whether the valuation misstatement penalties apply. Respondent filed a motion for summary judgment asserting that the Court has jurisdiction over the remaining issues raised by the FPAA because they all relate to partnership items and that a decision should be entered in favor of respondent on the remaining issues. Petitioner filed a cross-motion for summary judgment arguing that he has stipulated all of the partnership items adjusted in the FPAA and is entitled to summary judgment because all of the remaining issues relate to nonpartnership items over which the Court lacks jurisdiction under section 6226(f). In the alternative, petitioner argues that the valuation misstatement penalties imposed under section 6662(a), (b)(3), (e), and (h) are inapplicable as a matter of law because the penalties do not relate to an error in “valuation” but relate to respondent’s determination that Petaluma and/or the transactions it purportedly entered into should be disregarded. Discussion Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). Summary judgment may be granted where there is no genuine issue of any material fact and a decision may be rendered as a matter of law. Rule 121(a) and (b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994). The parties agree that this case is ripe for summary judgment because both parties raise only questions of law. Petitioner stipulated: “if the Court determines that it has jurisdiction in this" }, { "docid": "10967265", "title": "", "text": "OPINION Ruwe, Judge: Section 1441 requires a payor to withhold income tax on certain types of income paid to nonresident alien individuals. The items of income referred to in section 1441, which include interest, are subject to withholding “to the extent that any of such items constitutes gross income from sources within the United States”. Sec. 1441(a) (emphasis added). Section 1461 makes the payor personally liable for this withholding tax. The income and tax referred to in these sections are required to be reported annually on Form 1042, U.S. Annual Return of Income Tax To Be Paid at Source. Respondent determined deficiencies of $3,785,250 for each of the taxable years 1982 through 1985 with respect to petitioner’s liability under these sections of the Code. This case is before the Court on petitioner’s motion for partial summary judgment filed pursuant to Rule 121. The motion concerns only the deficiency for the taxable year 1982. The sole issue for decision is whether the 6-year period for assessment of tax provided by section 6501(e)(1) applies where the income subject to withholding tax under section 1441 is understated by an amount in excess of 25 percent of the amount of gross income stated in the Form 1042. Summary judgment is intended to expedite litigation and avoid expensive trials of phantom factual questions. Shiosaki v. Commissioner, 61 T.C. 861, 862 (1974). A decision on the merits of the parties’ claims may be made on summary judgment if there is no genuine issue as to any material fact and the decision can be made as a matter of law. Rule 121(b). The Court will not resolve disputes over factual issues in a summary judgment proceeding. Naftel v. Commissioner, 85 T.C. 527, 529 (1985); Espinoza v. Commissioner, 78 T.C. 412, 416 (1982). For purposes of this motion, the facts, as set out below, are not in dispute. The stipulation of facts and attached exhibits are incorporated herein by this reference. Petitioner is an Indiana corporation with its principal office in Hammond, Indiana. In the notice of deficiency, issued August 1, 1991, respondent determined a deficiency in income" }, { "docid": "15562561", "title": "", "text": "OPINION Dawson, Judge: Petitioners petitioned the Court for redetermination of a deficiency of $32,672 in their Federal income tax for 2006 and an accuracy-related penalty of $6,534.40 under section 6662. This case is before us on respondent’s motion for partial summary judgment pursuant to Rule 121 filed on July 19, 2011. Petitioners object to the motion and filed a response. Summary judgment may be granted with respect to all or any part of the legal issues in controversy “if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law.” Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988). The moving party bears the burden of proving that there is no genuine issue of material fact, and factual inferences will be read in a manner most favorable to the party opposing summary judgment. Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340, 344 (1982). Although the parties have not stipulated any of the facts in this case, they agree there are no disputes as to genuine issues of material facts. On the basis of our review of the record, we are satisfied that there is no genuine issue as to any material fact and that judgment may be rendered as a matter of law. After concessions by respondent, the issues for decision are (1) whether petitioners are entitled to the noncash charitable contribution deduction under section 170(a) in connection with their granting the Fairfax County Fire and Rescue Department (fcfrd) the right to conduct training exercises on their property and demolish the house thereon during the exercises, and (2) whether petitioners are liable for the accuracy-related penalty under section 6662. Background Petitioners resided in Virginia when their petition was filed. In 2006 petitioners resided in Haymarket, Virginia. On May 31, 2006, they purchased property in Vienna, Virginia" }, { "docid": "11587788", "title": "", "text": "the capacity of an individual to be substituted is determined by local law. Under New York law, “A personal representative is a person who has received letters to administer the estate of a decedent.” N.Y. Est. Powers & Trusts Law sec. 1-2.13 (McKinney 1998). At a hearing before this Court on respondent’s motion to dismiss, counsel for Mrs. Giamelli filed a motion to substitute as petitioner the Estate of Joseph Giamelli, Deceased, Joann Giamelli, Executrix, in the place of Joseph Giamelli. Counsel represented to the Court that Mrs. Giamelli had received letters to administer her husband’s estate. While Mrs. Giamelli’s motion did not include a copy of the letters to administer the estate, we are satisfied on counsel’s representation that Mrs. Giamelli has been appointed the executrix of her husband’s estate and that she wishes to continue with his petition in that capacity. Accordingly, because we find that Mrs. Giamelli wishes to be substituted for Mr. Giamelli in her capacity as the executrix of Mr. Giamelli’s estate, an appropriate order will be entered amending the caption of this case. Further, respondent’s motion to dismiss for lack of prosecution will be denied. II. Motion for Summary Judgment Respondent has also filed a motion for summary judgment pursuant to Rule 121(a). Respondent argues for summary judgment on the grounds that the Appeals officer properly exercised her discretion in rejecting the proposed installment agreement and sustaining the proposed collection action because Mr. Giamelli was not in compliance with his current tax obligations. Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). Summary judgment may be granted where there is no genuine issue of any material fact and a decision may be rendered as a matter of law. Rule 121(a) and (b); see Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994). The moving party bears the burden of proving that there is no genuine issue of material fact, and factual inferences will be read in a manner most favorable to the party" }, { "docid": "19367732", "title": "", "text": "Sec. 6512(b); Barton v. Commissioner, 97 T.C. 548, 552 (1991). We must first decide whether the regulation precludes petitioner from claiming additional FSC commission expenses for the years in issue. If we hold that it does, we must then decide whether the regulation is valid. For the purpose of petitioner’s motion and respondent’s cross-motion, the parties agree that there are no genuine issues of material fact in dispute and that the matter before us is ripe for summary judgment. Rule 121(b); Exxon Corp. v. Commissioner, 102 T.C. 721, 725 (1994); Intel Corp. & Consol. Subs. v. Commissioner, 100 T.C. 616, 619 (1993), affd. 67 F.3d 1445 (9th Cir. 1995). If we grant petitioner’s motion, further proceedings to determine the amounts of additional FSC commission expenses to which petitioner is entitled will be required. If, on the other hand, we grant respondent’s cross-motion, no further proceedings concerning this issue will be necessary. In deciding the matter before us, we first find it useful to synopsize the statutory and regulatory framework and history pertaining to FSC’s and their statutory predecessors, domestic international sales corporations (Disc’s). Congress enacted the DISC provisions in 1971 as a tax incentive to encourage and increase exports. Revenue Act of 1971, Pub. L. 92-178, sec. 501, 85 Stat. 497, 535. The DISC provisions are set forth in sections 991 through 997. Those sections allowed domestic corporations to defer taxes on a significant portion of profits from export sales similar to the tax benefits available to corporations manufacturing abroad through foreign subsidiaries. H. Rept. 92-533, at 58-59 (1971), 1972-1 C.B. 498, 529; S. Rept. 92-437, at 90-91 (1971), 1972-1 C.B. 559, 609. A domestic corporation that conducts its foreign operations through a foreign subsidiary generally does not pay Federal tax on the income from those operations until the subsidiary’s income is repatriated to the domestic parent. General Dynamics Corp. & Subs. v. Commissioner, 108 T.C. 107, 116 (1997). Under the DISC provisions, Congress created intercompany pricing rules for the purpose of limiting the amount of income that the parent (related supplier) could allocate to the DISC, thus limiting the" }, { "docid": "19367731", "title": "", "text": "the petition.) Respondent rejected UCFSC’s amended returns, and no additional tax has been assessed against UCFSC for the aforementioned years. On December 12, 1996, the parties held a telephone conference call with the Court in which it was agreed that the threshold issue of whether or not petitioner had timely asserted its claims for additional FSC commission expenses under the regulation would be considered apart from the substantive merits of those recomputations. On the basis of that discussion, petitioner filed its motion, and respondent filed his cross-motion, for partial summary judgment with respect to the threshold issue, along with supporting memoranda of law. Discussion Petitioner asks us to find overpayments of taxes for its 1987, 1988, and 1989 tax years, respectively, based on its recomputation of the commissions payable to its foreign subsidiary, UCFSC, during those years pursuant to section 925(a) and attendant regulations. We have jurisdiction to determine the amounts of any overpayments with respect to petitioner’s 1987, 1988, and 1989 tax years since respondent has determined a deficiency for each of those years. Sec. 6512(b); Barton v. Commissioner, 97 T.C. 548, 552 (1991). We must first decide whether the regulation precludes petitioner from claiming additional FSC commission expenses for the years in issue. If we hold that it does, we must then decide whether the regulation is valid. For the purpose of petitioner’s motion and respondent’s cross-motion, the parties agree that there are no genuine issues of material fact in dispute and that the matter before us is ripe for summary judgment. Rule 121(b); Exxon Corp. v. Commissioner, 102 T.C. 721, 725 (1994); Intel Corp. & Consol. Subs. v. Commissioner, 100 T.C. 616, 619 (1993), affd. 67 F.3d 1445 (9th Cir. 1995). If we grant petitioner’s motion, further proceedings to determine the amounts of additional FSC commission expenses to which petitioner is entitled will be required. If, on the other hand, we grant respondent’s cross-motion, no further proceedings concerning this issue will be necessary. In deciding the matter before us, we first find it useful to synopsize the statutory and regulatory framework and history pertaining to FSC’s and" }, { "docid": "2120856", "title": "", "text": "transfers. Respondent subsequently issued a notice of deficiency to the Estate of Frank Armstrong (the Armstrong estate) determining a deficiency in estate tax of $2,350,071. The deficiency is attributable to respondent’s determination that the estate failed to include in the gross estate the gift taxes that decedent had paid on the above-described transfers as required under the so-called gross-up rule prescribed in section 2035(c). The estate filed a timely petition for redeter-mination (assigned docket No. 1118-98). Respondent issued separate notices of transferee liability to petitioners stating that, as transferees, petitioners each are liable for $1,968,213 (the value of the stock that decedent transferred to each petitioner) in respect of the estate tax deficiency of $2,350,071 due from the estate. Petitioners filed timely petitions for redetermination contesting the notices of transferee liability. Petitioners move for partial summary judgment, asserting that they are not liable as transferees as a matter of law. Respondent maintains that petitioners are subject to transferee liability for the Armstrong estate tax deficiency pursuant to section 6324(a)(2). Discussion Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials. See Florida Peach Corp. v. Commissioner, 9Ó T.C. 678, 681 (1988). Summary judgment may be granted 'with respect to all or any part of the legal issues in controversy “if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials,' together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law.” Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988); Naftel v. Commissioner, 85 T.C. 527, 529 (1985). Section 6901 sets forth the procedures that are applicable prior to the assessment and collection of an income, estate, or gift tax liability from a transferee. Section 6901(a)(l)(A)(ii) provides: SEC. 6901. TRANSFERRED ASSETS. (a) Method op , Collection. — The amounts of the following liabilities shall, except as hereinafter in this section provided, be assessed, paid, and collected in the same" } ]

[ { "docid": "5222835", "title": "", "text": "that the depositors’ claims are derivative. As we have stated, courts generally have recognized that permitting indirectly injured parties to sue wrongdoers under RICO may lead to a multiplicity of suits and potentially impair the rights of other claimants. See Rylewicz, 888 F.2d at 1179; Rand, 794 F.2d at 849; Warren, 759 F.2d at 545; cf. 3A Fletcher, supra, § 1282. This principle has special significance in this case, where continuation of plaintiffs’ suit could disrupt the efforts of FDIC to recover the institution’s assets, which were depleted by defendants’ mismanagement and wrongdoing, for equitable distribution among all depositors and creditors in accordance with the federal priority scheme. Cf. Downriver, 879 F.2d at 764 (uninsured depositors’ suit against insolvent bank and its receiver (FDIC) seeking imposition of constructive trust upon bank assets could jeopardize orderly administration of receiver’s estate; depositors are limited to pro rata share of assets held by receiver); Brandenburg, 859 F.2d at 1191-92 (Burford abstention appropriate; continuation of depositors’ RICO suit against officers and directors of failed savings and loan could disrupt state receiver’s efforts to recover institution’s assets for distribution to depositors and creditors who sustained losses because of mismanagement by officers and directors). FDIC brought suit against defendants on September 2, 1986, alleging negligence and breach of fiduciary duty, and seeking more than $589 million in damages. See FSLIC v. Jacoby, CA No. 86-7567, MDL No. 655 (E.D.Pa.). On May 29, 1990, over the Pop-kins’ objections, the district court approved a settlement agreement between FDIC, the shareholders of Old Sunrise, and a number of defendants. In re Sunrise Securities Litigation, MDL No. 655, 131 F.R.D. 450 (E.D.Pa.1990); see note 2, supra. According to FDIC, funds recovered under this agreement will be applied toward the claims against FDIC, including the depositors’ claims, in accordance with the distribution scheme established under the receivership regulations, 12 C.F.R. §§ 388.4, 389.-11 (1990); id. §§ 569a.7, 569c.ll (1989). The Popkins objected to the settlement on grounds that it depleted defendants’ liability insurance, thus limiting the depositors’ ability to recover from these defendants directly. 131 F.R.D. at 458. FDIC contends, however," } ]

[ { "docid": "22055924", "title": "", "text": ". . . becomes to all intents and purposes the bank — at least he stands in the place of the bank; . . . the receiver, after his appointment, represents the bank, its stockholders and creditors.” O’Connor v. Rhodes, 65 App.D.C. 21, 79 F.2d 146, 148 (1935). Section 1821(d) of 12 U.S.C. generally directs that the FDIC as receiver shall enforce the individual liability of the stockholders and directors, wind up the affairs of the closed bank, and pay to the depositors and other creditors the net amounts available for distribution to them. It also provides that the FDIC shall have all rights, powers, and privileges granted by law to a receiver of a national bank or District bank. 12 U.S.C. § 1819 specifically confers the power to sue. A derivative suit by shareholders should not be precluded merely because a bank is in the receivership of the FDIC. The FDIC would remain free to exercise its control over the winding up of the bank and to institute suit itself on behalf of the corporation. Congress has given no indication that it intended to preclude derivative suits by the shareholders of a national bank in receivership. When a receiver refuses to bring suit or “where it would be a vain thing to make a demand upon [it], and it is shown there is a necessity for a suit for the protection of the interests of creditors,” a stockholder is free to sue. O’Connor v. Rhodes, 65 App.D.C. 21, 79 F.2d at 149, aff’d sub nom. United States Shipping Board Merchant Fleet Corp. v. Rhodes, 297 U.S. 383, 56 5. Ct. 517, 80 L.Ed. 733 (1936). Moreover, we agree with the statement that: To- say that in every case the rule of exclusive power in the receiver is posi-five and admits of no exception, would be to sacrifice substantial rights to matters of form. Id. at 148-149. We believe this case should be treated under the same principles applied to any derivative suit. The allegations in plaintiffs’ original and amended complaint, however, are merely general. The amended complaint alleges that" }, { "docid": "22270495", "title": "", "text": "titles, powers, and privileges of the insured depository institution, and of any stockholder, member, accountholder, depositor, officer, or director of such institution with respect to the institution and the assets of the institution....” Plainly, the section vests all rights and powers of a stockholder of the bank to bring a derivative action in the FDIC. One of those rights or powers is the pursuit of the very claims asserted here. The FDIC can decide to bring an action against the directors for their wrongdoing, if any there was. See 12 U.S.C. § 1821(k). If stockholders have a right to demand corporate action, the corporation must have a duty to proceed. On the other hand, if they have the power to proceed against a third party for the corporation’s benefit, that party will be liable to respond when they do so. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions As Applied In Judicial Reasoning, 23 Yale L.J. 16, 28-49 (1913). But, again, the statute has vested all stockholders’ rights and powers in the FDIC itself. Perhaps with an eye on Hohfeldian analysis, id., Congress also covered privileges just to be sure that nothing was missed. In other words, Congress has transferred everything it could to the FDIC, and that includes a stockholder’s right, power, or privilege to demand corporate action or to sue directors or others when action is not forthcoming. Having read the section in that manner, we can bring our analysis to an end, unless, of course, the result would be absurd or impracticable. See Oregon Natural Resources Council, Inc., v. Kantor, 99 F.3d 334, 339 (9th Cir.1996). The result of our interpretation is neither absurd nor impracticable. Rather, it helps assure the expeditious and orderly protection of all who are interested in the bank by placing the pursuit of its rights, protection of its assets, and payment of its liabilities firmly in the hands of a single, congressionally designated agency. A number of courts, which have considered the matter, have reached the selfsame conclusion. See FDIC v. American Casualty Co., 998 F.2d 404, 406 (7th Cir.1993); In re" }, { "docid": "22380400", "title": "", "text": "is faced with a disqualifying conflict every time a bank-in-receivership is asked to sue another federal agency; it is the nature of the OTS-FDIC relationship that raises the conflict here. None of the cases cited by the defendant contradict the rule in First Hartford. O’Melveny, cited supra, stands for the proposition that the FDIC “steps into the shoes” and obtains the “rights” of the institution. 512 U.S. at 86, 114 S.Ct. 2048. The Court specifically held that because California state law imputes the knowledge of corporate officers to their corporation, the FDIC is treated no differently when it “steps into the shoes” of a failing bank; the knowledge possessed by the former bank directors is imputed to the FDIC. Id. The strongest proposition that can be drawn from this holding is that the FDIC cannot escape the limitations that a state imposes on other corporations just because the language of FIRREA is expansive. In fact, in O’Melveny, the Court explicitly noted that there might be exceptions to the absolute rule it put forth, “where some provision in the extensive framework of FIRREA provides otherwise.” Id. at 87, 114 S.Ct. 2048. The defendant also points to Pareto. In Pareto, we spoke with clarity, holding that, “Congress has transferred everything it could to the FDIC [through FIRREA], and that includes a stockholder’s right, power, or privilege to demand corporate action or to sue directors or others when action is not forthcoming.” 139 F.3d at 700. In the very next sentence, however, we noted that exceptions to this absolute rule were justified if the result would otherwise “be absurd or impracticable.” Id. In Pareto, the result was not “absurd or impracticable” because the FDIC was qualified to decide, on behalf of the former stockholders, whether the bank should sue the directors for breaching the duty of loyalty and for misrepresenting information. Id. at 698. In the instant case, strict adherence to an absolute rule would be at least impracticable, and arguably absurd. The FDIC was asked to demand a lawsuit, refuse this demand, and proceed derivatively with the lawsuit against one of its" }, { "docid": "22270496", "title": "", "text": "with an eye on Hohfeldian analysis, id., Congress also covered privileges just to be sure that nothing was missed. In other words, Congress has transferred everything it could to the FDIC, and that includes a stockholder’s right, power, or privilege to demand corporate action or to sue directors or others when action is not forthcoming. Having read the section in that manner, we can bring our analysis to an end, unless, of course, the result would be absurd or impracticable. See Oregon Natural Resources Council, Inc., v. Kantor, 99 F.3d 334, 339 (9th Cir.1996). The result of our interpretation is neither absurd nor impracticable. Rather, it helps assure the expeditious and orderly protection of all who are interested in the bank by placing the pursuit of its rights, protection of its assets, and payment of its liabilities firmly in the hands of a single, congressionally designated agency. A number of courts, which have considered the matter, have reached the selfsame conclusion. See FDIC v. American Casualty Co., 998 F.2d 404, 406 (7th Cir.1993); In re Southeast Banking Corp., 827 F.Supp. 742, 746 (S.D.Fla.1993), rev’d in part on other grounds, 69 F.3d 1539 (11th Cir.1995); cf. Bauer v. Sweeny, 964 F.2d 305, 307-308 (4th Cir.1992). It is true that the cases are not uniform on this issue. Pareto primarily relies on Branch v. FDIC, 825 F.Supp. 384 (D.Mass.1993) for the opposite conclusion. The district court in that case recognized that the statute “would appear” to place all of the stockholders’ rights in the FDIC. Id. at 404. It, however, pointed out that 12 U.S.C. § 1821(d)(11)(B) provides that if everyone else with an interest has been paid, any residual assets shall be distributed to the stockholders. From this the district court gathered that the stockholders must have some remaining rights and must, therefore, have a continuing right to pursue and protect the assets of the bank. See id. at 404-05. We agree that in construing a statute we must consider all of its parts. See Dole v. United Steelworkers of America, 494 U.S. 26, 35, 110 S.Ct. 929, 934, 108 L.Ed.2d" }, { "docid": "12256129", "title": "", "text": "standing. First, the defendants claim that 12 U.S.C. § 1821(d)(2)(A)(i) of the FDIA, as recently enacted by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), Pub.L. No. 101-73,103 Stat. 183, reprinted in 1989 U.S.C.C.A.N. 183, expressly alters the common law rule that shareholders of failed national banks may assert derivative claims. Second, and in the alternate, the defendants contend that the conflicts of interest alleged here are all explicitly authorized by Congress and hence cannot constitute wrongdoing which impairs the FDIC’s business judgment. Turning first to the defendants’ statutory defense, section 1821(d)(2)(A)(i) specifically provides that the FDIC, “as conservator or receiver, and by operation of law, succeeds to— (i) all rights, titles, powers and privileges of the insured depository institution, and of any stockholder, member, accountholder, depositor, officer, or director of such institution with respect to the institution and the assets of the institution.” 12 U.S.C. § 1821(d)(2)(A)© (emphasis added). No comparable language existed in the superseded version of section 1821(d). The defendants contend that this section unequivocally and unambiguously places all incidents of ownership with FDIC-Reeeiver, thereby leaving it the sole owner of, and sole party-entitled to assert, the insolvent bank’s causes of action. The defendants also suggest that since under section 1821(2)(d)(A)(i) the shareholders of a failed national bank effectively cede their shares to the FDIC upon its appointment as receiver, Branch therefore fails to meet a fundamental requirement for bringing a derivative suit — that the shareholder retain stock ownership for the duration of the derivative suit. See Lewis v. Chiles, 719 F.2d 1044, 1047 (9th Cir.1983). In response, Branch argues that while section 1821 (d)(2)(A)(i) codifies the common law rule that FDIC-Receiver, like other receivers, steps into the shoes of the bank upon its failure, it does not alter the settled rule that seized banks’ shareholders may pursue derivative actions. It appears that no court has addressed this issue. As the party contending that legislative action has changed settled law, the defendants have the burden of showing that the legislature intended such a change. Green v. Bock Laundry Machine Co., 490 U.S. 504," }, { "docid": "6577638", "title": "", "text": "of which were brought derivatively on behalf of the first two subsidiary banks. The FDIC moved to dismiss these derivative claims arguing, inter alia, that under § 1821 (d)(2)(A) (i), the plaintiff was no longer a shareholder of the two subsidiaries since the parent bank effectively ceded its shares to the FDIC upon the latter’s appointment as the subsidiaries’ receiver. The District Court rejected this argument, noting that while the text of § 1821(d)(2)(A)(i) gave the receiver all the rights and powers of the stockholders of a failed institution, under another FIRREA statute, § 1821(d)(11)(B), the shareholders remained entitled to distribution of the excess amounts after payment of all claims and expenses. Id. at 404. In language highly applicable to the instant case, the court concluded: In light of the language and juxtaposition of these two sections, this Court cannot conclude that Congress intended to preserve shareholder’s rights to the residual assets of the failed financial institution, yet terminate the shareholders’ ability to protect the failed institution’s interests. Such a bold departure from common law adjudicatory principles would place unfettered discretion in the hands of FDIC-Receiver, and might deny shareholders any avenue of redress should the FDIC improperly neglect to assert the failed institution’s rights. In the absence of legislative history supporting such a decisive derogation of shareholders’ common law rights, the Court cannot interpret section 1821(d)(2)(A)(i) to divest failed institutions’ shareholders of their rights to assert a derivative action on behalf of the failed institution. Id. at 404-405. We agree with the Branch court’s view. So long as the former shareholders make an adequate demand on the receiver (or adequately show the futility of such a demand), the fact that a failed association has been placed into receivership does not preclude them from bringing a derivative suit. The plaintiffs in the instant case demanded that the RTC, Ben Franklin’s receiver, sue the United States on the association’s behalf. This demand was ignored. Ultimately, the government in the instant case, like the FDIC in Branch, is faced with a conflict of interest. The government contends that the RTC is in" }, { "docid": "22270499", "title": "", "text": "In re Sunrise Sec. Litig., 916 F.2d 874, 879, 889 (3d Cir.1990). Of course, we need not concern ourselves with what- claims, if any, interested parties may have against the FDIC should it commit some wrongdoing. That issue is not before us. Therefore, Pareto did not have standing to assert this derivative action against the FDIC and the former directors of the bank. CONCLUSION When Congress enacted FIRREA, it put in place a tessellated scheme which was designed to provide an orderly method of ending the destabilization taking place in the financial industry, a destabilization that was destroying the institutions themselves and the rights of depositors, creditors, insurers, and investors. Part of that statutory mosaic vested great power in the FDIC, and that included giving it all of the rights, powers, and privileges of the failing institutions, their depositors, account holders, officers, directors, and stockholders. In fine, all of the accouterments of ownership were gathered into the hands of a single entity so that it would be in a position to develop a consistent approach to dealing with the institution’s various problems. While we are well aware of the fact-that many individuals, both inside and outside of the banking industry, do not think that the results of FIRREA are cause for a joyful tintinnabulation, we are in no position to second guess Congress’s choice. In short, we hold that the FDIC does have all of the stockholders’ rights and powers to bring any derivative action. As a result, Pareto has no standing to proceed with this case. AFFIRMED. . In reviewing these questions, we reject Pareto's argument that the district court Was required to follow the decisions of the state court prior to removal, even when those decisions were legally erroneous. Once the district court decided that Pareto lacked standing, dismissal was required. See Cohen, 115 F.3d at 703; Vinci v. Waste Management, Inc., 80 F.3d 1372, 1376-77 (9th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 1252, 137 L.Ed.2d 333 (1997); Shell Petroleum, N.V. v. Graves, 709 F.2d 593, 595-96 (9th Cir.1983). At times, the law of the case" }, { "docid": "223501", "title": "", "text": "law helpful in formulating a federal common law principle to the question of priority presented by the instant case. The statute defines the term “commonly controlled” at section 206(a)(7), § 5(e)(9). This new provision statutorily indemnifies the FDIC against loss with the funds of solvent parts of the same financial empire. Congress put the FDIC’s claim for indemnity into a well-defined priority system. The liability of any insured depository institution under this subsection shall have priority with respect to other obligations and liabilities as follows: (i) SUPERIORITY. — The liability shall be superior to the following obligations and liabilities of the depository institution: (I) Any obligation to shareholders arising as a result of their status as shareholders (including any depository institution holding company or any shareholder or creditor of such company). This places shareholders at the end of the line to recover from otherwise solvent third parties (e.g. the bank holding company). The common control liability provisions do not stop with a priority system, however. They also create an ability to preclude other actions, like the stay in bankruptcy. To the extent the exercise of any right or power of any person would impair the ability of any insured depository institution to perform such institution’s obligations under this subsection— (i) the obligations of such insured depository institution shall supersede such right or power; and (ii) no court may give effect to such right or power with respect to such insured depository institution. FIRRE Act, sec. 206(a)(7), § 5(e)(4), 12 U.S. C.A. § 1815(e)(4) (West 1989). By no means does this statutory scheme decide the case before us. Because the Bank was not held in conjunction with any other financial institution, this case does not involve commonly controlled institutions. Nevertheless, the priority scheme established shows Congress’s understanding of how priorities work in settings involving claims against solvent third parties when both the FDIC and stockholders assert claims. The equity of the statute supports our conclusion that the FDIC’s claims against the Bank’s officers and directors should receive a priority over Gaff’s claim. The legislative history of the FIRRE Act does show" }, { "docid": "22270494", "title": "", "text": "506, 511-13, 138 Cal. Rptr. 181, 184-85 (1977); Sutter, 28 Cal.2d at 530, 170 P.2d at 901. While Pareto does make vague allegations about misrepresentations that caused him to support the unsuccessful merger attempt and initiation of a receivership, his only injury from those misrepresentations was the devaluation of his stock when Barbary Coast was taken over by the FDIC. But that is an injury that fell on every stockholder, majority and minority alike, and fell on each on a per share basis. In fine, this action is one against the former directors for allegedly delivering a fatal blow to the bank. It is clearly derivative, and that is all it is. B. FDIC’S Right to Shareholder Claims' Pareto’s assertion that the FDIC did not accede to his derivative stockholder claims against the allegedly miscreant directors of the bank must founder on the rocks of 12 U.S.C. § 1821(d)(2)(A)(i), which is part of FIRREA. That section states that the FDIC “shall, as conservator or receiver, and by operation of law, succeed to ... all rights, titles, powers, and privileges of the insured depository institution, and of any stockholder, member, accountholder, depositor, officer, or director of such institution with respect to the institution and the assets of the institution....” Plainly, the section vests all rights and powers of a stockholder of the bank to bring a derivative action in the FDIC. One of those rights or powers is the pursuit of the very claims asserted here. The FDIC can decide to bring an action against the directors for their wrongdoing, if any there was. See 12 U.S.C. § 1821(k). If stockholders have a right to demand corporate action, the corporation must have a duty to proceed. On the other hand, if they have the power to proceed against a third party for the corporation’s benefit, that party will be liable to respond when they do so. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions As Applied In Judicial Reasoning, 23 Yale L.J. 16, 28-49 (1913). But, again, the statute has vested all stockholders’ rights and powers in the FDIC itself. Perhaps" }, { "docid": "22380394", "title": "", "text": "in the shoes of the insolvent S & L, ... except wkere some provision in the extensive framework of FIRREA provides otherwise.” O’Melveny & Myers v. FDIC, 512 U.S. 79, 86-87, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994). We have held that one of the rights transferred to the FDIC as receiver is the right to sue on behalf of the institution. Pareto v. FDIC, 139 F.3d 696, 700 (9th Cir.1998) (“Congress has transferred everything it could to the FDIC, and that includes a stockholder’s right, power, or privilege to demand corporate action or to sue directors or others when action is not forthcoming.”). Despite such unequivocal language, plaintiffs make a simple plea to logic: the FDIC should not have the final say on whether it is in Delta’s best interests to sue the OTS. The OTS and the FDIC are interrelated agencies with overlapping personnel, structures, and responsibilities, and thus, according to plaintiffs, the FDIC faces a conflict of interests when it contemplates a suit against the OTS. Even though the FDIC, as receiver, is supposed to represent the best interest of Delta, the FDIC may be unwilling to bring a lawsuit against the OTS because of the close ties that bind the two agencies. We agree. In First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d 1279 (Fed.Cir.1999), the Federal Circuit adopted a “conflict of interests” exception to the FIRREA which is similar to the exception urged by plaintiffs in this case. A large shareholder of a bank, which had been seized and placed under the receivership of the FDIC, brought suit against the United States alleging that the FDIC had breached contracts and committed unlawful takings in handling the troubled bank. Id. at 1284. The lower court — the Court of Federal Claims — had held that the shareholder lacked standing because only the FDIC, as receiver, had the authority to sue on the bank’s behalf. Id. at 1294 (citing 42 Fed. Cl. 599, 612-16 (1998)). The Court of Federal Claims based its ruling, in part, on our court’s holding in Pareto. 194 F.3d" }, { "docid": "19328481", "title": "", "text": "therefore the true party at interest in this case and should be substituted for the Trust. See, e.g., Federal Deposit Insurance Corp. v. Wrapwell Corp., 922 F.Supp. 913, 917 (S.D.N.Y.1996) (ordering substitution when bank receiver succeeded to “all rights, titles, powers, and privileges” and receiver was true party in interest in action to recover promissory notes owed to failed bank). The Court finds persuasive the Report’s analogy to the statutory language and interpretation of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), 12 U.S.C. § 1821(d)(2); 12 U.S.C. § 1787(b)(2). In particular, the Court agrees that it should be guided by the Ninth Circuit’s ruling in Pareto v. Federal Deposit Insurance Corp., 139 F.3d 696 (9th Cir.1998), which held that statutory language vesting “all rights, titles, powers, and privileges” of previous shareholders, directors, and officers in the FDIC, included “a stockholder’s right, power, or privilege to demand corporate action or to sue directors or others when action is not forthcoming,” and that therefore only the FDIC could “decide to bring an action against the directors for their wrongdoing.” The statutory language in HERA dictates the same result here. The Trust’s argument concerning Delta Savings Bank v. United States, 265 F.3d 1017 (9th Cir.2001), where the FDIC was denied substitution for shareholders in a derivative suit due to its conflicts of interest, is unconvincing. In that case, substitution would have resulted in the FDIC stepping into a case against a government agency with which it had close ties. The Trust has pointed to no such conflict of interest here, where the derivative suit is filed against former officers and directors for breaching their fiduciary duties and misrepresenting information. Similarly unconvincing is the Trust’s argument that the FHFA’s powers as conservator, as opposed to receiver, are inadequate to gain full recovery. This distinction is not drawn by HERA, and the Court finds no justification in the caselaw for drawing it here. HERA grants all rights and powers of to the FHFA, whatever economic interest the Trust retains does not entitle it to overcome or supplement the FHFA’s rightful standing" }, { "docid": "22380393", "title": "", "text": "his capacity as a stockholder, officer, or director of Delta. Kim’s claims brought in his individual capacity remained. The RTC had been named the conservator and then the receiver of Delta. The district court reasoned that the clear language of the Financial Institution Reform, Recovery and Enforcement Act of 1989 (“FIRREA”), 12 U.S.C. § 1821a, et seq., transferred any rights that Kim once may have had as a stockholder, officer, and director of Delta to the RTC (and then to the FDIC). According to the district court, the rights transferred included the right to sue on behalf of Delta. It reasoned that “[t]he FDIC’s position as receiver or conservator provides it with the exclusive right to file suit against those who injure the institution over which it exercises supervision.” Under FIRREA, FDIC-appointed conservators and receivers “shall ... by operation of law, succeed to — (i) all rights, titles, powers, and privileges of the insured depository institution.” 12 U.S.C. § 1821(d)(2)(A). “It is hard to avoid the conclusion that § 1821(d) (2)(A) (i) places the FDIC in the shoes of the insolvent S & L, ... except wkere some provision in the extensive framework of FIRREA provides otherwise.” O’Melveny & Myers v. FDIC, 512 U.S. 79, 86-87, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994). We have held that one of the rights transferred to the FDIC as receiver is the right to sue on behalf of the institution. Pareto v. FDIC, 139 F.3d 696, 700 (9th Cir.1998) (“Congress has transferred everything it could to the FDIC, and that includes a stockholder’s right, power, or privilege to demand corporate action or to sue directors or others when action is not forthcoming.”). Despite such unequivocal language, plaintiffs make a simple plea to logic: the FDIC should not have the final say on whether it is in Delta’s best interests to sue the OTS. The OTS and the FDIC are interrelated agencies with overlapping personnel, structures, and responsibilities, and thus, according to plaintiffs, the FDIC faces a conflict of interests when it contemplates a suit against the OTS. Even though the FDIC, as receiver," }, { "docid": "22380401", "title": "", "text": "provision in the extensive framework of FIRREA provides otherwise.” Id. at 87, 114 S.Ct. 2048. The defendant also points to Pareto. In Pareto, we spoke with clarity, holding that, “Congress has transferred everything it could to the FDIC [through FIRREA], and that includes a stockholder’s right, power, or privilege to demand corporate action or to sue directors or others when action is not forthcoming.” 139 F.3d at 700. In the very next sentence, however, we noted that exceptions to this absolute rule were justified if the result would otherwise “be absurd or impracticable.” Id. In Pareto, the result was not “absurd or impracticable” because the FDIC was qualified to decide, on behalf of the former stockholders, whether the bank should sue the directors for breaching the duty of loyalty and for misrepresenting information. Id. at 698. In the instant case, strict adherence to an absolute rule would be at least impracticable, and arguably absurd. The FDIC was asked to demand a lawsuit, refuse this demand, and proceed derivatively with the lawsuit against one of its closely-related, sister agencies. This was one hat too many to be placed atop the head of the FDIC. We hold, following First Hartford and consistent with O’Melveny and Pareto, that a common-sense, conflict of interest exception to the commands of FIRREA warrants granting standing to Kim as a representative of Delta in this case. However, because we hold in Part 11(B) that Delta has no cause of action against the United States under the FTCA, although we reverse the Court’s finding of insufficient standing, we need not remand. B. The Federal Tort Claims Act The Federal Tort Claims Act (FTCA) acts as a waiver of the United States’ traditional sovereign immunity for certain torts committed by its employees. 28 U.S.C. §§ 1346(b), 2674. “The United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances .... ” 28 U.S.C. § 2674. Furthermore, “the district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, ... for" }, { "docid": "6577636", "title": "", "text": "the powers and functions of a receiver may be sought or accorded other than under the provisions of § 1464(d)(6)(A) of Title 12” and that “only a receiver may institute, prosecute or maintain claims on behalf of any association placed in receivership.” Id. at 994-995. We agree with the First S & L court that a failed financial institution loses all rights to sue on its own behalf once it is placed in receivership. We disagree, however, that this necessarily precludes former shareholders from suing derivatively in instances where the receiver fails to enforce the right which the shareholders seek to enforce. Just as the receiver stands in the shoes of the former institution’s management and directors for all governance, the shareholders have the same derivative rights to remedy its failure to assert corporate interests as they have with respect to a negligent corporate management via the derivative action against third parties who have injured the corporation. Nothing in the statutory scheme turns the receiver into an “infallible” manager with “unfettered discretion” just because the receiver happens to be the government. Finally, in Branch v. FDIC, 825 F.Supp. 384 (D.Mass.1993), the United States District Court for Massachusetts held that 12 U.S.C. § 1821(d)(2)(A)(i) — one of the FIRREA statutes cited by the defendant in the instant case — “[did] not alter the settled rule that shareholders of failed national banks may assert derivative claims.” Branch, 825 F.Supp. at 405. The plaintiff in Branch was the trustee of a failed national bank who brought claims on behalf of the bank and two of its former subsidiary banks against the FDIC. The plaintiff claimed that the FDIC, in its capacity as receiver for a third of the bank’s subsidiaries, made certain transfers of funds from the bank to that subsidiary in order to reduce its (the FDIC’s) overall costs in handling the subsidiary’s failure by increasing its asset base at the expense of the parent bank and its other subsidiary banks. Id. at 393. The plaintiff sought to recover those transferred funds and brought a number of claims against the FDIC, some" }, { "docid": "5960592", "title": "", "text": "financial situation mandated a federal receivership); ANICO, 705 F.Supp.2d at 21 (finding that the plaintiffs were required to pursue then-claims against the FDIC as receiver through the process provided by Congress in FIRREA). Further, JPMC and the FDIC Receiver contend that any derivative claim that WMI may have for alleged harm to WMB is now owned by the FDIC. 12 U.S.C. § 1821(d)(2)(A)(i) (providing that the FDIC as receiver “succeeds to all rights, titles, powers, and privileges of ... stockholder” of the bank). See also Pareto v. F.D.I.C., 139 F.3d 696, 700 (9th Cir.1998) (determining that § 1821(d)(2)(A)(i) vests all rights and powers of a stockholder of a bank to bring a derivative action in the FDIC). The FDIC Receiver further argues that the Debtors did not file any claim in the Receivership action based on the alleged Business Tort Claims and those claims are, therefore, time-barred. Cf. 12 U.S.C. § 1464(d)(2)(B) (any claims challenging the appointment of the FDIC as Receiver must be brought against the OTS within 30 days of the appointment). Under the Global Settlement, the Debtors are waiving any claims they have against JPMC and the FDIC Receiver, including any derivative claims based on the Business Tort Claims. The Plan Objectors contend that the Business Tort Claims are valid and valuable claims, meriting denial of approval of the Global Settlement on that basis alone. The Court finds, however, that the Debtors’ likelihood of success on the Business Tort Claims is not high. The ANICO suit has already been dismissed on the basis that it had to be brought in the FDIC receivership action. ANICO, 705 F.Supp.2d at 21. There is a question whether the Business Tort Claims were included in the claim the Debtors originally filed in the FDIC receivership action. Further, as noted above, any claim for damages under the Business Tort Claims would require that the Debtors prove that they were solvent at the time of the seizure of WMB, a position diametrically opposed to assertions they would need to prove in the preference and fraudulent conveyance claims. xi. Miscellaneous other claims The Global" }, { "docid": "22270497", "title": "", "text": "Southeast Banking Corp., 827 F.Supp. 742, 746 (S.D.Fla.1993), rev’d in part on other grounds, 69 F.3d 1539 (11th Cir.1995); cf. Bauer v. Sweeny, 964 F.2d 305, 307-308 (4th Cir.1992). It is true that the cases are not uniform on this issue. Pareto primarily relies on Branch v. FDIC, 825 F.Supp. 384 (D.Mass.1993) for the opposite conclusion. The district court in that case recognized that the statute “would appear” to place all of the stockholders’ rights in the FDIC. Id. at 404. It, however, pointed out that 12 U.S.C. § 1821(d)(11)(B) provides that if everyone else with an interest has been paid, any residual assets shall be distributed to the stockholders. From this the district court gathered that the stockholders must have some remaining rights and must, therefore, have a continuing right to pursue and protect the assets of the bank. See id. at 404-05. We agree that in construing a statute we must consider all of its parts. See Dole v. United Steelworkers of America, 494 U.S. 26, 35, 110 S.Ct. 929, 934, 108 L.Ed.2d 23 (1990); Higa v. Transocean Airlines, 230 F.2d 780, 784 (9th Cir.1955). But we cannot agree with Branch’s conclusion. The mere fact that any residue will go to the stockholders is not surprising. Indeed, where else would it go after all depositors, creditors, other claimants, and administrative expenses had been paid? One would hardly expect Congress to order an escheat. But that remaining vestige of the stockholders’ rights can hardly be said to allow a wholesale invasion of the FDIC’s control over proceedings. Branch’s additional concern that the stockholders will otherwise go without protection does nothing to advance the argument. They, like all others who have some interest in recovering funds from the closed bank, must simply rely upon the FDIC to do its job. For similar reasons, we do not agree with the decisions of other courts which, without analysis, seem to have simply assumed that stockholders and others retain the ability to bring derivative actions after commencement of an FDIC receivership. See American Casualty Co. v. FDIC, 39 F.3d 633, 636-637 (6th Cir.1994);" }, { "docid": "22270498", "title": "", "text": "23 (1990); Higa v. Transocean Airlines, 230 F.2d 780, 784 (9th Cir.1955). But we cannot agree with Branch’s conclusion. The mere fact that any residue will go to the stockholders is not surprising. Indeed, where else would it go after all depositors, creditors, other claimants, and administrative expenses had been paid? One would hardly expect Congress to order an escheat. But that remaining vestige of the stockholders’ rights can hardly be said to allow a wholesale invasion of the FDIC’s control over proceedings. Branch’s additional concern that the stockholders will otherwise go without protection does nothing to advance the argument. They, like all others who have some interest in recovering funds from the closed bank, must simply rely upon the FDIC to do its job. For similar reasons, we do not agree with the decisions of other courts which, without analysis, seem to have simply assumed that stockholders and others retain the ability to bring derivative actions after commencement of an FDIC receivership. See American Casualty Co. v. FDIC, 39 F.3d 633, 636-637 (6th Cir.1994); In re Sunrise Sec. Litig., 916 F.2d 874, 879, 889 (3d Cir.1990). Of course, we need not concern ourselves with what- claims, if any, interested parties may have against the FDIC should it commit some wrongdoing. That issue is not before us. Therefore, Pareto did not have standing to assert this derivative action against the FDIC and the former directors of the bank. CONCLUSION When Congress enacted FIRREA, it put in place a tessellated scheme which was designed to provide an orderly method of ending the destabilization taking place in the financial industry, a destabilization that was destroying the institutions themselves and the rights of depositors, creditors, insurers, and investors. Part of that statutory mosaic vested great power in the FDIC, and that included giving it all of the rights, powers, and privileges of the failing institutions, their depositors, account holders, officers, directors, and stockholders. In fine, all of the accouterments of ownership were gathered into the hands of a single entity so that it would be in a position to develop a consistent approach" }, { "docid": "12256128", "title": "", "text": "383, 56 S.Ct. 517, 80 L.Ed. 733 (1936)). These rules routinely apply to FDIC re-ceiverships as well. Landy, 486 F.2d at 147 (citations omitted); see Gaubert v. United States, 885 F.2d 1284, 1290 n. 6 (5th Cir.1989), rev’d on other grounds, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Federal Deposit Ins. Corp. v. American Bank, 558 F.2d 711, 716 (4th Cir.1977); In re Longhorn Sec. Litig., 573 F.Supp. 255, 272 (W.D.Okla.1983). Branch alleges that he demanded on May 16, 1991 that FDIC-CBT and FDIC-MNB bring suit on behalf of CBT and MNB. It is undisputed that FDIC-CBT and FDIC-MNB never asserted these claims. Branch argues that the FDIC has several conflicts of interest which prevent it from exercising unprejudiced judgment with respect to the claims at issue, and which therefore warrant this Court allowing derivative standing: (1) the FDIC would be suing itself; and (2) the FDIC took part in and benefitted from the events giving rise to the federal funds claims. The defendants advance two main grounds for denying Branch derivative standing. First, the defendants claim that 12 U.S.C. § 1821(d)(2)(A)(i) of the FDIA, as recently enacted by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), Pub.L. No. 101-73,103 Stat. 183, reprinted in 1989 U.S.C.C.A.N. 183, expressly alters the common law rule that shareholders of failed national banks may assert derivative claims. Second, and in the alternate, the defendants contend that the conflicts of interest alleged here are all explicitly authorized by Congress and hence cannot constitute wrongdoing which impairs the FDIC’s business judgment. Turning first to the defendants’ statutory defense, section 1821(d)(2)(A)(i) specifically provides that the FDIC, “as conservator or receiver, and by operation of law, succeeds to— (i) all rights, titles, powers and privileges of the insured depository institution, and of any stockholder, member, accountholder, depositor, officer, or director of such institution with respect to the institution and the assets of the institution.” 12 U.S.C. § 1821(d)(2)(A)© (emphasis added). No comparable language existed in the superseded version of section 1821(d). The defendants contend that this section unequivocally and unambiguously places all" }, { "docid": "223485", "title": "", "text": "section 212(a) vests in the FDIC “all rights, titles, powers, and privileges of the insured depository institution, and of any stockholder ... with respect to the institution and the assets of the institution....” This suit involves the overall “assets of the institution.” If the FDIC recovers more than it paid for the bad assets of a bank, the rest returns to the receiver who distributes it to the creditors and, eventually, the stockholders of the bank. Thus, any recovery by the FDIC reduces the overall outlay from the insurance fund, and thereby increases the possibility that the estate of the bank will have more money with which it can repay creditors and stockholders. The FDIC’s right to recovery in these instances is determined under comprehensive federal law that preempts state law in this field. The second provision in the new statute that indicates congressional intent to preempt state law is the new law concerning the FDIC’s right of subrogation to the rights of depositors. The new law reads: “Notwithstanding any other provisions of Federal law, the law of any State, or the constitution of any State, the Corporation, upon the payment [of insurance proceeds] to any depositor ... shall be subrogated to all rights of the depositor against such institution or branch to the extent of such payment or assumption.” The old law did not contain the language preempting other federal and all state laws on the subject. 12 U.S.C. § 1821(g) (1988). The law of subrogation also leads to our conclusion below that the FDIC obtains a priority over the direct actions of stockholders against officers and directors. We note it here merely to demonstrate Congress’s intent to preempt state law by occupying the field of national bank insurance and the FDIC’s rights. Finally, Congress has clearly indicated that the liability of officers and directors of a bank are determined under federal law. The relevant language of the new statute reads: A director or officer of an insured depository institution may be held personally liable for monetary damages in any civil action by ... the Corporation ... (1) acting" }, { "docid": "5960591", "title": "", "text": "of WMB. ANICO v. JPMorgan Chase & Co., 705 F.Supp.2d 17, 21 (D.D.C.2010). That order is presently on appeal. (Kosturos Decl. at ¶ 25.) As noted above, early in the bankruptcy case, the Debtors conducted discovery of JPMC under Rule 2004 regarding the Business Tort Claims which are similar to the various claims asserted in the ANICO Litigation. (Id. at ¶ 26.) Both JPMC and the FDIC Receiver contend that the Debtors have no chance of recovery on those claims. Principally, they argue that any claims challenging the closing of WMB or its sale to JPMC are barred by FIRREA. See, e.g., Freeman v. F.D.I.C., 56 F.3d 1394, 1399 (D.C.Cir.1995) (finding that anyone bringing a claim against the assets of a failed bank held by the FDIC as receiver must first exhaust its remedies under the FDIC’s claims process); Cal. Hous. Sec. Inc. v. United States, 959 F.2d 955, 958 (Fed.Cir.1992) (holding that the plaintiff could not have expected to be compensated for a regulatory take-over if that occurred following a determination that the plaintiffs financial situation mandated a federal receivership); ANICO, 705 F.Supp.2d at 21 (finding that the plaintiffs were required to pursue then-claims against the FDIC as receiver through the process provided by Congress in FIRREA). Further, JPMC and the FDIC Receiver contend that any derivative claim that WMI may have for alleged harm to WMB is now owned by the FDIC. 12 U.S.C. § 1821(d)(2)(A)(i) (providing that the FDIC as receiver “succeeds to all rights, titles, powers, and privileges of ... stockholder” of the bank). See also Pareto v. F.D.I.C., 139 F.3d 696, 700 (9th Cir.1998) (determining that § 1821(d)(2)(A)(i) vests all rights and powers of a stockholder of a bank to bring a derivative action in the FDIC). The FDIC Receiver further argues that the Debtors did not file any claim in the Receivership action based on the alleged Business Tort Claims and those claims are, therefore, time-barred. Cf. 12 U.S.C. § 1464(d)(2)(B) (any claims challenging the appointment of the FDIC as Receiver must be brought against the OTS within 30 days of the appointment). Under" } ]

[ { "docid": "22710540", "title": "", "text": "Railroad Commission, 289 U. S. 287, 304-305, 314; West Ohio Gas Co. v. Public Utilities Commission (No. 1), 294 U. S. 63, 70; West v. Chesapeake & Potomac Tel. Co., 295 U. S. 662, 692-693 (dissenting opinion). It is not theory but the impact of the rate order which counts. If the total effect of the rate order cannot be said to be unjust and unreasonable., judicial inquiry under the Act is at an end. The fact that the method employed to reach that result may contain infirmities is not then important. Moreover, the Commission’s order does not become suspect by reason of the fact that it is challenged. It is the product of expert judgment which carries a presumption of validity. And he who would upset the rate order under the Act carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences. Cf. Railroad Commission v. Cumberland Tel. & T. Co., 212 U. S. 414; Lindheimer v. Illinois Bell Tel. Co., supra, pp. 164, 169; Railroad Commission v. Pacific Gas & Electric Co., 302 U. S. 388, 401. The rate-making process under the Act, i. e., the fixing of “just and reasonable” rates, involves a balancing of the investor and the consumer interests. Thus we stated in the Natural Gas Pipeline Co. case that “regulation does not insure that the business shall produce net revenues.” 315 U. S. p. 590. But such considerations aside, the investor interest has a legitimate concern with the financial integrity of the company whose rates are being regulated. From the investor or company point of view it is important that there be enough revenue not only for operating expenses but also for the capital costs of the business. These include service on the debt and dividends on the stock. Cf. Chicago & Grand Trunk Ry. Co. v. Wellman, 143 U. S. 339, 345-346. By that standard the return to the equity owner should be commensurate with returns on investments in other enterprises having corresponding risks. That return, moreover, should be sufficient to" } ]

[ { "docid": "16202857", "title": "", "text": "and financed pursuant to Section 221(d)(3) and Section 236 of the National Housing Act (“NHA”) through a three-party arrangement including the Owners, the Department of Housing and Urban Development (“HUD”), and private lenders. The Section 221(d)(3) and Section 236 programs (“the programs”) were designed by Congress primarily to encourage creation of low-income housing. Generally, in exchange for an agreement by property Owners to maintain particular properties as low-income housing properties (subject to federal regulations), the United States granted various tax benefits and committed to insuring the mortgages of the Owners. Prior to 1968, this mortgage insurance enabled the Owners to obtain below-market rate mortgages (Section 221(d)(3)). After 1968, the NHA was amended to enable Owners to obtain a market-rate mortgage with an interest rate subsidy from the United States and enabled the lenders to issue long-term mortgages amortizable over a forty-year period (Section 236). In addition, as Appellants contend, another incentive was the option to prepay the mortgages, without HUD approval, at the end of a twenty-year term and thus eliminate the restrictions on the property imposed by federal regulation. These changes to the federal regulations, including the elimination of the twenty-year prepayment option, are the subject of the present, and other, litigation. The three-party transaction was essentially a government-subsidized real estate development deal between the Owners and the lenders. The United States’s role in the transaction was to act as an insurer for the Owners in the event of default of the Owners’ mortgage commitments. In exchange for the United States’s commitment, the Owners agreed to various restrictions on the use of the properties in the programs. These obligations included: (1) constructing and maintaining housing in accordance with HUD specifications; (2) renting only to HUD-approved low- and moderate-income tenants; (3) charging only HUD-approved rents; (4) maintaining cash reserves to self-insure against default; and (5) limiting return on investment to no more than an annual return of six percent on initial investment. The three parties to this complicated transaction made various commitments to each other, evidenced by the execution of at least five separate independent agreements, including a Mortgage Note" }, { "docid": "16220942", "title": "", "text": "the specified prepayment periods. The extant regulation and contract with the lenders specifically supported the expectations of these Owners to prepay at twenty years. Further, regulatory takings cases based on contracts containing key guarantees later negated by Congress may be fundamentally different from those involving only the generalized “regulatory environment” seen in earlier statutes, regulations, agency policies and practices, and industry understandings, relied upon in Commonwealth Edison, 271 F.3d at 1348-54. Thus, the need for as broad a review of documents in these housing cases remains to be determined. For example, “contemporaneous publications” is a very broad class of documents. Presumably not every document of this broad class will be relevant under Penn Central to claims by sections 221(d)(3) and 236 participants who sought to exit the programs after twenty years. In deciding whether to rely on particular evidence, the trial court should also remain mindful of our holding that it was reasonable for the Model Plaintiffs not to have expected a material contract term and regulatory provision to be negated just because the federally-subsidized low income housing industry was admittedly highly-regulated. The high level of regulation for the housing programs may have less effect in this type of case than in some others because here the regulations themselves established the program participants’ right to prepay. Nor should the Model Plaintiffs reasonably have expected divestment of their prepayment right simply because at the time of the enactments a shortage of low-income housing was projected that would have been exacerbated if these owners exercised their right to prepay and were not replaced by new participants, as Congress had other alternatives which it had already utilized in the past. On the other hand, if on remand for the non-model plaintiffs the government can produce documents from HUD to those plaintiffs, or other evidence that similarly negates the reasonableness of the expectation based on a material contract term, that would present a different case. In addition, when assessing any other federal housing statutory provisions, the trial court should only consider those provisions that are somehow related to the sections 221(d)(3) or 236 programs" }, { "docid": "15836006", "title": "", "text": "DYK, Circuit Judge. These cases involve takings claims resulting from the enactment of the Emergency Low Income Housing Preservation Act of 1987, Pub.L. No. 100-242, § 202, 101 Stat. 1877 (1988) (“ELIHPA”), and the Low-Income Housing Preservation and Resident Homeownership Act of 1990, Pub.L. No. 101-625, 104 Stat. 4249 (1990) (“LIHPRHA”). The Court of Federal Claims held that the enactment of these statutes effected a taking. Cienega Gardens v. United States, 67 Fed.Cl. 484 (2005) (“Cienega IX”). Because we conclude that the Court of Federal Claims, notwithstanding its careful opinion, erred in certain respects in its legal analysis, we vacate and remand for further proceedings. BACKGROUND These consolidated cases return to us after remands in Cienega Gardens v. United States, 331 F.3d 1319, 1324 (Fed.Cir. 2003) (“Cienega VIII ”) and Chancellor Manor v. United States, 331 F.3d 891, 893 (Fed.Cir.2003). The pertinent history may be briefly described. I In 1934 Congress, concerned with the declining national stock of affordable housing, enacted the National Housing Act. Pub.L. No. 73-479, § 1, 48 Stat. 1246 (1934). Until the 1960s, the National Housing Act primarily subsidized the projects of local public housing authorities. In 1961 Congress amended the National Housing Act to “enable private enterprise to participate to the maximum extent in meeting the housing needs of moderate-income families.” S.Rep. No. 87-281, at 4 (1961), as reprinted in 1961 U.S.C.C.A.N. 1923, 1926; see Pub.L. No. 87-70, § 101(a)(6), 75 Stat. 149, 149-50 (1961) (“section 221(d)(3)”). Congress amended section 221(d)(3) in 1968 (“section 236”). Pub.L. No. 90-448, § 201, 82 Stat. 476, 498-501 (1968). The newly enacted section 221(d)(3) and section 236 programs provided financial incentives to private investors for the creation of additional low income housing. These financial incentives were threefold. First, the programs provided below-market-rate mortgages. Under section 221(d)(3), the owners of low-income housing projects entered into mortgage contracts with private lenders at the market rate. Once the project was completed, the mortgages were purchased by the Federal National Mortgage Association (“FNMA”). The FNMA, using government subsidies, then reduced the original rate, charging below-market rates to the owners. See Pub.L. No. 87-70," }, { "docid": "16220909", "title": "", "text": "be valid. In particular, the government maintains that ELIHPA and LIHPRHA did not limit the plaintiffs’ rate of return inappropriately because of the low financial risk they undertook by participating in' the section 221(d)(3) and 236 insured-housing programs. In making this argument the government cites the plaintiffs’ discussion of the method of setting a fair rate of return for regulated public utilities. For regulated utilities, the returns to the equity owner should be commensurate with returns on investments in other enterprises having corresponding risks. Fed. Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 603, 64 S.Ct. 281, 88 L.Ed. 333 (1944) (holding that a return rate of 6.5% was “just and reasonable”). Regulated utilities are not, however, sufficiently analogous to make the holding in Federal Power relevant. And even if they were, the risks involved in the participation in the housing programs were sufficiently high to merit greater return than 0.3%. Section 221(d)(3) and 236 projects that failed to receive sufficient rents to cover their costs were subject to foreclosure, just like any other mortgaged property.' Program participants were, thus, subject to the risk that they would lose their initial investments and any further equity that had accrued. Some did. Therefore to claim that the ventures were low risk is unjustified. The government also emphasizes that one of the Model Plaintiffs, Pico Plaza, did not prepay its HUD-insured loan when given the opportunity by the HOPE Act, and that Pico Plaza’s inaction would not have been logical if it were true that LIH-PRHA so diminished the value of the property. This inference, however, does not necessarily follow. There could be reasons that Pico Plaza did not prepay that have nothing to do with whether or not it suffered “a serious financial loss” because of the regulatory imposition. Finally, the government cites Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 1484, 152 L.Ed.2d 517 (Apr. 23, 2002) for the principle that “[[logically, a fee simple estate cannot be rendered valueless by a temporary prohibition on economic use, because the property will recover" }, { "docid": "15836008", "title": "", "text": "§ 101(c), 75 Stat. 149, 153 (1961). Under section 236, the owners also contracted for mortgages with private lenders, but the government directly subsidized the interest payments to the lender. See Pub.L. No. 90-448, § 201, 82 Stat. 476, 498-501 (1968). The programs permitted the owners to borrow ninety percent of the overall cost of the project. The mortgage contracts were for forty-year mortgages and included an option to prepay the mortgage without HUD approval after twenty years. The regulations under the statute were consistent with these contracts, including providing for prepayment without HUD approval after twenty years. 24 C.F.R. §§ 221.524, 236.30 (1970); see Cienega Gardens v. United States, 194 F.3d 1231, 1243-44 (Fed.Cir.1998) (“Cienega IV”). Second, to encourage lending both sections 221(d)(3) and 236 authorized the FHA to insure mortgages in order to protect lenders against default. See Pub.L. No. 90-448, § 201, 82 Stat. 476, 498-501 (1968); Pub.L. No. 87-70, § 103, 75 Stat. 149, 158 (1961). Finally, the owners were entitled to a “Builder’s and Sponsor’s Profit and Risk Allowance” (“BSPRA”), which was a payment from HUD to the owner toward the owner’s down payment. The BSPRA was calculated as ten percent of the “actual cost” of construction. In addition to the direct incentives provided under sections 221(d)(3) and 236, entities who entered into these programs received substantial tax benefits. At that time, the tax laws permitted accelerated depreciation for real estate projects over the real economic life of the property, allowing the general and limited partners to take large income tax deductions in the earlier years of the investment. While these tax benefits were not particular to section 221(d)(3) and section 236 properties, the benefits were particularly significant under these programs because the properties were highly leveraged so that the tax benefits the partners received were substantial in comparison to their limited investment. To ensure that the housing created by the programs would continue to be used for low-income families, Congress provided that the Department of Housing and Urban Development (“HUD”) would regulate the operation of the low-income housing projects. Under both programs, the owner" }, { "docid": "12225784", "title": "", "text": "any contract with the Government relating to the prepayment of their mortgage notes, or that any property interests belonging to the plaintiffs have been subject to a taking. The case is before the court on defendant’s motion for summary judgment. Plaintiffs oppose defendant’s motion and seek a trial on the issues of contract formation, taking, and damages. For the reasons discussed hereinafter, the court finds that there was no breach of contract and no taking by the Government. Defendant’s motion for summary judgment is granted. FACTUAL BACKGROUND National housing policy, the goal of which is to provide “a decent home and a suitable living environment for every American family,” 42 U.S.C. § 1441, began in the New Deal era with the passage of the National Housing Act (NHA) of 1934 and the United States Housing Act of 1937. Initially the federal government sought to provide low-income housing primarily by subsidizing projects developed, owned, and managed by local public housing authorities. During the 1960s the federal government shifted its focus by enacting legislation to encourage the construction, ownership and management of low and moderate-income housing by private owners. Specifically, Congress amended the National Housing Act in 1961 by establishing the section 221(d)(3) program, 12 U.S.C. § 1715£(d)(3), allowing the Federal Housing Administration (which was subsumed in the newly-created Department of Housing and Urban Development, HUD, in 1965) to provide mortgage insurance and below-market interest rate loans to private owners. In 1968 Congress amended the NHA again, establishing the section 236 program, 12 U.S.C. § 1715z-l, which allows HUD to provide mortgage insurance and interest rate subsidies to private owners. Both the section 221(d)(3) and section 236 programs require owners to pass on the financial benefits of the government-insured loans to tenants in the form of lower rents. Owners accepting a government-insured loan pursuant to the section 221(d)(3) and section 236 programs were subject to HUD regulations governing the use of their properties. They were restricted as to the distribution of their income, the rents and other fees they could charge, and their methods of operation. 24 C.F.R. §§ 221.510(c), 236.10(e) (1970)." }, { "docid": "12225785", "title": "", "text": "construction, ownership and management of low and moderate-income housing by private owners. Specifically, Congress amended the National Housing Act in 1961 by establishing the section 221(d)(3) program, 12 U.S.C. § 1715£(d)(3), allowing the Federal Housing Administration (which was subsumed in the newly-created Department of Housing and Urban Development, HUD, in 1965) to provide mortgage insurance and below-market interest rate loans to private owners. In 1968 Congress amended the NHA again, establishing the section 236 program, 12 U.S.C. § 1715z-l, which allows HUD to provide mortgage insurance and interest rate subsidies to private owners. Both the section 221(d)(3) and section 236 programs require owners to pass on the financial benefits of the government-insured loans to tenants in the form of lower rents. Owners accepting a government-insured loan pursuant to the section 221(d)(3) and section 236 programs were subject to HUD regulations governing the use of their properties. They were restricted as to the distribution of their income, the rents and other fees they could charge, and their methods of operation. 24 C.F.R. §§ 221.510(c), 236.10(e) (1970). Owners were also limited to a six percent rate of return on their initial equity investment in the project. 24 C.F.R. §§ 221.531(b), 221.532(a), and 236.50(a), (b) (1970). The plaintiffs in this action each own property in or near Minneapolis, Minnesota, on which rental housing complexes were constructed in 1973 and 1974. Chancellor Man- or, a Limited Partnership (hereinafter “Chancellor Manor”), owns a 200-unit complex called Chancellor Manor; Oak Grove Towers Associates, a Limited Partnership (hereinafter “Oak Grove Towers”), owns a 228-unit complex called Oak Grove Towers; and Gateway Investors, Ltd., a Limited Partnership (hereinafter “Gateway Investors”), owns a 269-unit complex called Rivergate Apartments. Each of the plaintiffs entered into a transaction with HUD and a private lender in accordance with § 236 of the NHA, as amended, pursuant to which their properties were built and operated as low-income housing under the section 236 program. Each transaction encompassed multiple legal instruments, including (1) a Regulatory Agreement (FHA Form No. 3136), (2) a Mortgage (FHA Form 4133-B), (3) a Mort gage Note (HUD form 48322-P Rev." }, { "docid": "15836009", "title": "", "text": "which was a payment from HUD to the owner toward the owner’s down payment. The BSPRA was calculated as ten percent of the “actual cost” of construction. In addition to the direct incentives provided under sections 221(d)(3) and 236, entities who entered into these programs received substantial tax benefits. At that time, the tax laws permitted accelerated depreciation for real estate projects over the real economic life of the property, allowing the general and limited partners to take large income tax deductions in the earlier years of the investment. While these tax benefits were not particular to section 221(d)(3) and section 236 properties, the benefits were particularly significant under these programs because the properties were highly leveraged so that the tax benefits the partners received were substantial in comparison to their limited investment. To ensure that the housing created by the programs would continue to be used for low-income families, Congress provided that the Department of Housing and Urban Development (“HUD”) would regulate the operation of the low-income housing projects. Under both programs, the owner and HUD entered into a regulatory agreement where any important management decisions, including increases in rents, had to be approved by HUD. See Pub.L. No. 90-448, § 201, 82 Stat. 476, 498-501 (1968). The agreements, under which HUD provided mortgage insurance and various subsidy payments, restricted the owners’ annual return to six percent of their initial equity investment in the property. This six percent dividend was not limited to the owners’ net cash investment in the property, which was only 1.8 to 3 percent of the value of the property, but was six percent of the initial equity investment. See Cienega IX, 67 Fed.Cl. at 440. The initial equity investment included the government’s BSPRA contribution, and the equity was not reduced by the tax benefits received. Id. Accordingly, the six percent dividend on the initial equity in the property (the cash investment and the BSPRA), could represent as much as a twenty-five percent return on the owner’s actual net cash investment. The restrictions of the regulatory agreements were effective for as long as HUD insured" }, { "docid": "16220908", "title": "", "text": "former is compensable even though it does not take 100% of the value of the property interest (i.e., it is not “categorical”). “Nothing in the Fifth Amendment limits its protection to only ‘categorical’ regulatory takings, nor has the Supreme Court or this court so held.” Id.; see, e.g., Yancey, 915 F.2d at 1540 (holding that a federal government quarantine that had caused the owner of a flock of healthy breeder turkeys to market them for slaughter with a resulting loss to the owner of 77% of the breeder flock’s value was a compensable taking even though the owner did receive some value in return for the slaughtered turkeys). The government also argues in the alternative that the present market value of the assets of an enterprise is not the only acceptable basis of calculating a reasonable return. The government does not point to any specific errors in the predicate numbers or the methods the plaintiffs used to calculate their losses; it merely suggests that other methods of calculation or ways of measuring economic impact would be valid. In particular, the government maintains that ELIHPA and LIHPRHA did not limit the plaintiffs’ rate of return inappropriately because of the low financial risk they undertook by participating in' the section 221(d)(3) and 236 insured-housing programs. In making this argument the government cites the plaintiffs’ discussion of the method of setting a fair rate of return for regulated public utilities. For regulated utilities, the returns to the equity owner should be commensurate with returns on investments in other enterprises having corresponding risks. Fed. Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 603, 64 S.Ct. 281, 88 L.Ed. 333 (1944) (holding that a return rate of 6.5% was “just and reasonable”). Regulated utilities are not, however, sufficiently analogous to make the holding in Federal Power relevant. And even if they were, the risks involved in the participation in the housing programs were sufficiently high to merit greater return than 0.3%. Section 221(d)(3) and 236 projects that failed to receive sufficient rents to cover their costs were subject to foreclosure, just like any" }, { "docid": "16202891", "title": "", "text": "previous twenty years. (Appellants’ Br. at 55.) They conclude as a result that they had a return of less than one percent during the applicable period. Id. But this is mere assertion without the benefit of a record or trial court findings. The economic impact finding in Cienega VIII was based directly on testimony and trial court findings of economic impact that were not clearly erroneous. Cienega VIII, at 1341. The Cienega VIII court stated: “This court’s assessment of the economic impact is that the Model Plaintiffs’ expert’s calculations (and the finding by the trial court about the credibility of that expert’s methods) proved sufficient financial loss on the part of the Model Plaintiffs for this factor to favor compensation for them, especially in view of the lack of any specific challenge by the government of the trial court’s findings or of the Model Plaintiffs’ methods and data.” Id. at 1345. However, the court concluded that “[w]ithout additional information about the rest of the plaintiffs, this court cannot make any determination regarding them.” Id. Here too the record as to economic impact remains to be made. ELIHPA prevented the Owners from prepaying, but the limitation was for a period of only two years. LIHPRHA, by contrast, did not simply prevent prepayment. Rather, it created a complex statute, which vested discretion in HUD and authorized HUD to provide additional incentives for the project owners to remain in the program, including increased rents, an increased rate of return, and the ability to withdraw an amount of equity through a second mortgage. 12 U.S.C. §§ 4104, 4109 (Supp. II 1990). To determine the nature of the government action, the court should determine how HUD would have exercised that discretion (which may be clear here from the agreements and proposed agreements). The court should also calculate the rate of return on invested capital under the new statutes as implemented by HUD and the reasonableness of that return. Determination of net investment may, in turn, require consideration of the government tax benefits afforded to the property owners. Additionally it is pertinent whether the party seeking" }, { "docid": "16220907", "title": "", "text": "was about 96% less than what they could have earned by investing their money elsewhere. This calculation of an approximately 96% percent loss of return on equity offers us a way to understand that a 0.3% rate of return actually demonstrates that the abrogation of the Model Plaintiffs’ prepayment rights had sufficient economic impact to merit compensation even under stringent conceptions in the case law of the percent diminution necessary to merit compensation. The loss of 96% of the possible rate of return on the investmept is, even under the most conservative view, a “serious financial loss.” In opposing this interpretation of the economic impact, the government first suggests that the plaintiffs needed to claim that the prepayment restrictions denied them all economically beneficial use of their property in order for the takings to be compensable. It is clearly not the law that only such 100% value regulatory takings are compensable. In Florida Rock Industries, Inc. v. United States, 18 F.3d 1560, 1570 (Fed.Cir.1994), this court specifically distinguished between “partial takings” and “mere diminutions”; the former is compensable even though it does not take 100% of the value of the property interest (i.e., it is not “categorical”). “Nothing in the Fifth Amendment limits its protection to only ‘categorical’ regulatory takings, nor has the Supreme Court or this court so held.” Id.; see, e.g., Yancey, 915 F.2d at 1540 (holding that a federal government quarantine that had caused the owner of a flock of healthy breeder turkeys to market them for slaughter with a resulting loss to the owner of 77% of the breeder flock’s value was a compensable taking even though the owner did receive some value in return for the slaughtered turkeys). The government also argues in the alternative that the present market value of the assets of an enterprise is not the only acceptable basis of calculating a reasonable return. The government does not point to any specific errors in the predicate numbers or the methods the plaintiffs used to calculate their losses; it merely suggests that other methods of calculation or ways of measuring economic impact would" }, { "docid": "19067399", "title": "", "text": "Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole” (internal quotation marks omitted)). From the outset, the section 221(d)(3) program involved a transfer of substantial benefits from taxpayers as a whole to the projects owners. Government subsidies provided the owners with below-market interest rates, and the government also insured the owners’ nonre-course loans and provided substantial tax breaks. Under LIHPRHA, HUD expended federal funds to entice non-profit organizations or other buyers to purchase owners’ properties at fair market value and to provide incentives for owners to enter into use agreements. Congress authorized HUD to spend $638 million on these incentives during the 1993 fiscal year alone. 12 U.S.C. § 4124(a). Through the end of 2006, the federal government spent about $1.2 billion to preserve 751 projects containing about 19,000 units, constituting an outlay of approximately $19,000 per unit. Maggie McCarty, Congressional Research Service Report: Preservation of HUD-Assisted Housing 23 (2010), available at http://www.preserveoregonhousing.org/ CRS_Pres_Report.pdf. In fact, Congress wanted to end LIHPRHA’s prepayment restrictions because it viewed the program as too “costly” and the benefits as providing a “windfall” for project owners. S.Rep. No. 104-140, at 37 (1995). For these reasons, I conclude that the character of the government action does not support CCA’s takings claim. . The majority analyzes both ELIHPA and LIHPRHA. See Majority Op. at 1246. However, only the provisions of LIHPRHA impacted the plaintiffs. Congress enacted ELIHPA on February 5, 1988. ELIHPA was then superseded by LIHPRHA, which was enacted on November 28, 1990, before CCA's predecessor became eligible to prepay its mortgage on May 17, 1991. . In addition to permitting the owner to escape the regulation, the statute also offered incentives (so-called use agreements) if an owner agreed to maintain the property as low-income housing subject to rent control for its remaining useful life. Congress viewed this as a \"fair and reasonable exchange” because the rates of return provided for under these use agreements \"compare[d] well to rates of return expected ... in market rate housing,” taking into account" }, { "docid": "19067400", "title": "", "text": "end LIHPRHA’s prepayment restrictions because it viewed the program as too “costly” and the benefits as providing a “windfall” for project owners. S.Rep. No. 104-140, at 37 (1995). For these reasons, I conclude that the character of the government action does not support CCA’s takings claim. . The majority analyzes both ELIHPA and LIHPRHA. See Majority Op. at 1246. However, only the provisions of LIHPRHA impacted the plaintiffs. Congress enacted ELIHPA on February 5, 1988. ELIHPA was then superseded by LIHPRHA, which was enacted on November 28, 1990, before CCA's predecessor became eligible to prepay its mortgage on May 17, 1991. . In addition to permitting the owner to escape the regulation, the statute also offered incentives (so-called use agreements) if an owner agreed to maintain the property as low-income housing subject to rent control for its remaining useful life. Congress viewed this as a \"fair and reasonable exchange” because the rates of return provided for under these use agreements \"compare[d] well to rates of return expected ... in market rate housing,” taking into account the low risk of the government program. S.Rep. No. 101— 316, at 105 (1990), 1990 U.S.C.C.A.N. 5763 at 5874. . See Majority Op. at 1245 (\"Offsetting benefits, if there are any, must be established by the government to rebut the plaintiff's economic impact case.”); CCA Assocs., 91 Fed.Cl. at 613-14 (\"Once CCA [had] established the economic impact of the restriction in question, the burden [was] on the government to show that other statutory benefits should offset that impact.”). . Similarly, the Claims Court held that \"to adopt [the government expert’s] estimate [of a 5% economic impact], this court must find that it was probable that CCA could have pursued a sale and have successfully sold the property under ELIHPA if it had sought to do so.” CCA Assocs., 91 Fed.Cl. at 614. . The Claims Court concluded that it was uncertain whether a sale would have occurred because there was no notice of a sale option under ELIHPA, no reasonable certainty that CCA could have found a willing buyer, and a sale under LIHPRHA would" }, { "docid": "4570936", "title": "", "text": "for financial incentives in return for continuing affordability restrictions as an alternative to prepayment and release from program restrictions. Id. at 20. As noted comprehensively by the trial court in the Cienega litigation, under ELIHPA for example, rather than submit a plan of action for prepayment, [A] property owner could also agree to extend the restrictions for the remainder of the mortgage in exchange for certain incentives. To receive such incentives, owners needed to agree to (1) retain the housing as low-income, very low-income, and moderate-income housing for the remaining term of the mortgage, (2) ensure that adequate expenditures were made for maintenance and operations of the properties, (3) not displace current tenants except for good cause, (4) not increase rent higher than 30 percent of a tenant’s adjusted income, or market rate, whichever might be lower, (5) phase in rent increases, and (6) charge rents for newly available apartments at HUD-approved rates and to HUD-approved tenants. In exchange, the Secretary was authorized to agree to provide owners one or more of the following benefits: an increase in the permissible distribution or other measures to increase the rate of return on the investment, a change in the method for calculating equity, increased access to residual receipts accounts or excess replacement reserves, a limited increase in the rents, financing of capital improvements, or other measures. Cienega Gardens v. United States, 67 Fed.Cl. 434, 442 (2005) (“Cienega IX”) (internal citations omitted). The option of seeking financial incentives and accompanying restrictions were stricter under LIHPRHA For example, rather than lasting for the remainder of the mortgage, the restrictions were to adhere for the useful life of the housing. Furthermore, section 222(e) of LIHPRHA provided, in part: To prevent payment of windfall profits, the Secretary may make available incentive payments under section 219 or 220 only to owners in those rental markets where there is an inadequate supply of decent, affordable housing, if the Secretary determines that adequate data can be obtained to permit objective and fair implementation or where necessary to accomplish the other public policy objectives under this subtitle. See Pis.’ App." }, { "docid": "16220860", "title": "", "text": "least twenty years, at which point the Owners would have the option of prepaying the mortgages and thereby dissolve the mortgage insurance and hence the restrictive Regulatory Agreements. The relevant HUD regulations also provided that they could be amended but not to the prejudice of the lenders. The mortgage documents themselves, however, contained no explicit reference to the amendment provision. The Regulatory Agreements each mention either section 221(d)(3) or section 236 and the corresponding regulations in their preambles but do not otherwise cite any further provision of the statutes or regulations. As the Owners’ participation in the housing programs approached the twenty-year mark, it became clear to Congress that large numbers of owners would prepay their mortgages and remove their properties from the federally-assisted low-income housing pool. H.R. Conf. Rep. No. 100-426, at 192 (1987). Loss of this federally-assisted, low-income housing “would inflict unacceptable harm on current tenants and would precipitate a grave national crisis in the supply of low income housing that was neither anticipated nor intended when contracts for these units were entered into.” ELIHPA § 202(a)(4). To avert the problem, Congress enacted ELIHPA in 1987 as a temporary measure. Under ELIHPA, even after twenty years, all housing program participants had to obtain HUD approval in order to prepay their mortgages despite their mortgage contracts containing a provision guaranteeing prepayment “without [HUD] approval.” Moreover, HUD could grant approval only if prepayment would not “materially increase economic hardship for current tenants” by increasing monthly rental payments by more than 10 percent or “involuntarily displace current tenants (except for good cause) where comparable and affordable housing is not readily available.” Id. § 225. Indeed, HUD was expressly prohibited from approving any application that did not meet the criteria listed in the Act. Id. LIHPRHA was enacted three years later to replace ELIHPA. It extended indefinitely the prohibition on prepayment without HUD approval. Thus, these statutes annulled the provision of the mortgage trust notes that prepayment was allowed after twenty years “without [HUD] approval.” The restrictions imposed by ELIHPA and LIHPRHA were essentially lifted by the Housing Opportunity Program Extension (HOPE)" }, { "docid": "16220943", "title": "", "text": "low income housing industry was admittedly highly-regulated. The high level of regulation for the housing programs may have less effect in this type of case than in some others because here the regulations themselves established the program participants’ right to prepay. Nor should the Model Plaintiffs reasonably have expected divestment of their prepayment right simply because at the time of the enactments a shortage of low-income housing was projected that would have been exacerbated if these owners exercised their right to prepay and were not replaced by new participants, as Congress had other alternatives which it had already utilized in the past. On the other hand, if on remand for the non-model plaintiffs the government can produce documents from HUD to those plaintiffs, or other evidence that similarly negates the reasonableness of the expectation based on a material contract term, that would present a different case. In addition, when assessing any other federal housing statutory provisions, the trial court should only consider those provisions that are somehow related to the sections 221(d)(3) or 236 programs in the late 1970s. While conceivably other statutory provisions or even some parts of their legislative histories may be relevant, the court must consider them in light of the parallel contractual agreements and HUD regulations then in effect governing the rights and expectations of the participants in the two programs. It is even possible that no additional legislative or regulatory materials or contemporaneous publications will be relevant. In sum, the trial court should rely on the statements of law in this opinion and those in the Chancellor opinion to guide its conclusions about the relevance of particular documents to a Penn Central analysis. VACATED-IN-PART, REVERSED-IN-PART, and REMANDED. COSTS Costs to be awarded to the appellants. . The plaintiffs’ agreement was contingent on the truth of the assumption that the holding in Alexander Investment was based on legal conclusions, not factual findings. . For the sake of simplicity, this opinion will sometimes refer to the Alexander Investment trial court as just \"the trial court,” but citations to the Alexander Investment opinion will be in the normal" }, { "docid": "16220905", "title": "", "text": "the credibility of the Model Plaintiffs’ expert’s method of calculation. Cienega III, 38 Fed. Cl. at 75. After trial, the. court found that the damage calculations of the plaintiffs’ expert, Dr. Peiser, were credible because they were based on estimates that were “actually conservative.” Id. Specifically “[t]he court [found] Dr. Peiser’s economic model more comprehensive and economically rational than that of either of defendant’s experts, Messrs. Cunningham and Nevin.” Id. Thus, although the Cienega III opinion does not include many numerical values, we can derive from the record specific numbers from the analysis that the trial court has certified as credible. As the government in its brief also uses some of these values, we conclude that they are undisputed. Thus, using the trial court’s findings we can be confident of the plaintiffs’ expert’s calculation that the aggregate amount of the Model Plaintiffs’ annual earnings at the time of their respective prepayment eligibility dates totaled $45,741. This number reflects the restrictions on profits from rentals imposed on the properties under paragraph 6(e) of the Regulatory Agreements. The Model Plaintiffs’ actual equity in their properties—the agreed-upon market values less their mortgage balances—shortly after their respective prepayment dates was calculated by the plaintiffs’ expert as $17,452,045. The Model Plaintiffs were, thus, on average, limited to an annual return of approximately 0.3% on their real equity in their properties. By comparing this rate of return to low-risk Fannie Mae bonds, which, according to Dr. Peiser, would have generated an 8.5% rate of return, we can make a rough estimate of the Model Plaintiffs’ percentage loss of return. Indeed, doing so, we calculate that the Model Plaintiffs would have received, by exiting the programs and reinvesting their money, on average, at least, 28 times greater return than they did have by being forced to stay in the programs. (An 8.5% rate of return is about 28 times more than a 0.3% rate of return.) Another way to think of this is that a 0.3% rate of return is only about 4% of an 8.5% rate of return so the Model Plaintiffs earned a return that" }, { "docid": "16220910", "title": "", "text": "other mortgaged property.' Program participants were, thus, subject to the risk that they would lose their initial investments and any further equity that had accrued. Some did. Therefore to claim that the ventures were low risk is unjustified. The government also emphasizes that one of the Model Plaintiffs, Pico Plaza, did not prepay its HUD-insured loan when given the opportunity by the HOPE Act, and that Pico Plaza’s inaction would not have been logical if it were true that LIH-PRHA so diminished the value of the property. This inference, however, does not necessarily follow. There could be reasons that Pico Plaza did not prepay that have nothing to do with whether or not it suffered “a serious financial loss” because of the regulatory imposition. Finally, the government cites Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 1484, 152 L.Ed.2d 517 (Apr. 23, 2002) for the principle that “[[logically, a fee simple estate cannot be rendered valueless by a temporary prohibition on economic use, because the property will recover value as soon as the prohibition is lifted.” This citation is inapt because of a fundamental error in the government’s characterization of this lawsuit. The Owners’ theory of recovery is not that their fee simple estates were taken or their land rendered “valueless.” The Owners' entitlement to compensation is based on the taking of the real property interests reflected in the mortgage loan notes and the Regulatory Agreements. The difference is that the Owners’ loss of the contractual prepayment rights was both total and immediate. They were barred from the unregulated rental market and other more lucrative property uses. Moreover, the Supreme Court’s holding in Tahoe-Sierra was based on the interpretation of the land use regulation case, Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), as holding that a regulatory taking that destroys 100% of a property interest’s value is categorical, like a taking by physical invasion, and automatically counts as a compensable taking. Based on this interpretation, the specific holding in Tahoe- Sierra was that the" }, { "docid": "16220878", "title": "", "text": "Congress the prerogative of modifying the notes, mention any likelihood of Congress’ doing so, allocate the risk of such changes to the Owners, or even mention HUD’s reservation of the right to amend in its separate regulations. See 24 C.F.R. § 236.249. Nor did the Regulatory Agreements contain any direct reference to the power to amend; they contained only a general reference to the regulations. Also in contrast to the Bowen plaintiffs, the Owners did have bargaining power over the prepayment term in their mortgage contracts, in the sense that prepayment was a fundamental consideration of the deal to which they agreed. The prepayment term set the termination date for a contract of finite duration and finite return on investment. To pretend that there was a meeting of the minds sufficient to form a contract that did not include an agreement upon the term to limit the duration is disingenuous. The Owners did not need to participate in the program — it was a profit-making venture for them, not a means of receiving needed social services offered only by the government as in Bowen. The Owners could simply have agreed to larger mortgages with private lenders if the economics of the offer by the government was not financially advantageous. The prepayment term was part of what made the offer a better choice than the alternatives. The Owners’ contracts were also more like the contracts in Lynch because the Owners were making payments that gave rise to obligations—in return for mortgage insurance, the Owners made payments to the government in the form of below-market rate rental charges to the government’s chosen tenants. Therefore, unlike in Bowen, the contracts in this case and the economic circumstances of the transactions contained no hint that the rights the contracts described were conditional, much less illusory. The Owners also do not attempt to remove their contracts from the reach of constitutional power in arguing that, unlike the Bowen plaintiffs, they had a property interest, as the government erroneously implies in its brief. The Owners do not challenge Congress’ authority to enact ELIHPA or LIHPRHA, only" }, { "docid": "16220906", "title": "", "text": "The Model Plaintiffs’ actual equity in their properties—the agreed-upon market values less their mortgage balances—shortly after their respective prepayment dates was calculated by the plaintiffs’ expert as $17,452,045. The Model Plaintiffs were, thus, on average, limited to an annual return of approximately 0.3% on their real equity in their properties. By comparing this rate of return to low-risk Fannie Mae bonds, which, according to Dr. Peiser, would have generated an 8.5% rate of return, we can make a rough estimate of the Model Plaintiffs’ percentage loss of return. Indeed, doing so, we calculate that the Model Plaintiffs would have received, by exiting the programs and reinvesting their money, on average, at least, 28 times greater return than they did have by being forced to stay in the programs. (An 8.5% rate of return is about 28 times more than a 0.3% rate of return.) Another way to think of this is that a 0.3% rate of return is only about 4% of an 8.5% rate of return so the Model Plaintiffs earned a return that was about 96% less than what they could have earned by investing their money elsewhere. This calculation of an approximately 96% percent loss of return on equity offers us a way to understand that a 0.3% rate of return actually demonstrates that the abrogation of the Model Plaintiffs’ prepayment rights had sufficient economic impact to merit compensation even under stringent conceptions in the case law of the percent diminution necessary to merit compensation. The loss of 96% of the possible rate of return on the investmept is, even under the most conservative view, a “serious financial loss.” In opposing this interpretation of the economic impact, the government first suggests that the plaintiffs needed to claim that the prepayment restrictions denied them all economically beneficial use of their property in order for the takings to be compensable. It is clearly not the law that only such 100% value regulatory takings are compensable. In Florida Rock Industries, Inc. v. United States, 18 F.3d 1560, 1570 (Fed.Cir.1994), this court specifically distinguished between “partial takings” and “mere diminutions”; the" } ]

[ { "docid": "22891282", "title": "", "text": "situation and to do work in competition with others.” 20 C.F.R. § 404.1563. The regulations establish the following age-related categories: “closely approaching retirement age (60-64)”; “advanced age (55-59)”; “closely approaching advanced age (50-54)”; “younger person age 45-49”; and “younger person age 18 — 44.” Id. & Appendix 2. The Department has allowed, however, that it “will not apply these age categories mechanically in a borderline situation.” Id. at § 404.1563(a). . There are four education-related categories established by the regulations: “high school graduate or more”; “limited or less”; “marginal or none”; and “illiterate or unable to communicate in English.” 20 C.F.R. § 404.1564 & Appendix 2. An individual’s education level ordinarily is ascertained by measuring the amount of any “formal schooling or other training which contributes to [his] ability to meet vocational requirements,” but evidence relating to test scores, past work experience and responsibilities, and daily activities also may be considered. Id. at § 404.1564(a). . The regulations enunciate the following “work experience” categories: “skilled or semiskilled — skills transferable”; “skilled or semiskilled — skills not transferable”; “unskilled”; and “none.” 20 C.F.R. § 404.1565 & Appendix 2. . The regulations define “residual functional capacity” as the level of work that an individual is able to perform in spite of his various physical and mental impairments. 20 C.F.R. § 404.1545. For purposes of the disability program, the Department has defined three levels of residual functional capacity: “maximum sustained work capability limited to medium work”; “maximum sustained work capability limited to light work”; and “maximum sustained work capability limited to sedentary work.” Id. & Appendix 2. . In the lead case on this appeal, the ALJ determined that Ms. Santise possessed a residual functional capacity for light work, was a “younger individual,” had a high school education and a semi-skilled work background, and therefore was “not disabled” pursuant to Rule 202.21 of the regulations. Santise v. Harris, 501 F.Supp. 274, 275-76 (D.N.J.1980). . This would be the case primarily in either of two situations: an applicant falls between the various definitional categories established by the regulations (e.g., the individual can perform more" } ]

[ { "docid": "22771510", "title": "", "text": "appellant’s complaints of severe and constant pain were not substantiated by the record; (2) appellant retains the capacity to engage in a variety of sedentary exertional activities despite certain “non-ex-ertional impairments”; and (3) appellant’s work as a crane operator was skilled, and certain skills he developed are transferable to meet the requirements of certain sedentary jobs, i.e., capacitor assembler, component mounter, and box coverer. During both appellant’s original hearing and on remand, the AU arrived at his conclusion by applying the evaluation procedure required by 20 C.F.R. § 404.1520. After finding that appellant was not working, the AU considered whether appellant’s impairment met or equalled an impairment listed in the Secretary’s Listing of Impairments, 20 C.F.R. § 404, Subpart P, Appendix l. After finding appellant’s impairments were not included in that list, the AU considered whether appellant could continue the type of work he had performed in the past. After concluding that appellant could not continue that type of work, the AU examined the four essential factors set out in 20 C.F.R. § 404.1505: appellant’s residual functional capacity, age, education, and past work experience. He then turned to the Medical-Vocational Guidelines, 20 C.F.R. § 404, Subpart P, Appendix 2. The guidelines are a matrix combining various permutations of the four essential factors noted above. See Santise v. Schweiker, 676 F.2d 925, 927-28 (3d Cir. 1982). Once the AU has determined as a matter of fact into which category a claimant’s age, education, work experience, and residual functional capacity fit, the guidelines direct a conclusion concerning a claimant’s disability. 20 C.F.R. § 404, Sub-part P, Appendix 2, § 200.00(a). That portion of the guidelines applicable to Mr. Podedworny is as follows: ' Previous Work Rule Age Education Experience Decision 201.10 Closely ap- Limited or Skilled or Disabled proaching less semi-skilled— advanced skills not age transferable „ » semi-skilled; XT ir.. ... . , Not Disabled skills transferable In view of his findings of fact, the AU applied Rule 201.11, which dictated the conclusion that appellant was not disabled. Because this case was decided on the grids, the Secretary concedes that, if" }, { "docid": "22771536", "title": "", "text": "included in the list. . Appellant’s age, educational le\\ el, and the skill level of his previous job are undisputed. Appellant's previous occupation as a crane operator is characterized by the ALJ as skilled work. For purposes of applying the Medical-Vocational Guidelines, work experience is divided into two categories, \"unskilled or none” and \"skilled or semiskilled.\" 20 C.F.R. § 404, Subpart P, Appendix 2. It is unnecessary for this court to determine if appellant’s experience was skilled or semi-skilled, for the evidence clearly suggests that it was not an unskilled position. For definitions of skill requirements, see 20 C.F.R. § 404.1568. His age at the time of the hearing is defined in the regulations as “closely approaching advanced age,” and his education (ninth grade) is defined as “limited or less.” . See also 20 C.F.R. § 404.1521(b): . The formal findings constitute the only operative segment of the ALJ’s report. The portion of the report that precedes the formal findings contains only a summary of the evidence. . Our scope of review on matters of law is plenary. . We should note that, given appellant’s current age of 57, which is classified as \"advanced age” under these regulations, different rules within the grid would now apply in any new proceedings. However, even under these rules, a determination of disability would still turn on the issue of transferability of skills. Rule 201.02, which applies to claimants with a residual functional capacity for sedentary work, advanced age, limited education, previous skilled or semiskilled work, and nontransferable skills, dictates a finding of disability. . In Parsons, the court concluded that: \"If the record as presented to the ALJ contains substantial evidence supporting a finding that the claimant was disabled, then a reviewing court may reverse and remand the case to the District Court for entry of an order granting benefits to the claimant.” Parsons, at 1341. . It is apparent that direct reversal of the Secretary is no longer an uncommon judicial remedy. In a recent opinion, Judge Barry of the District of New Jersey has set forth fiscal year 1983 data, supplied" }, { "docid": "13138054", "title": "", "text": "over) is the point where age significantly affects a person’s ability to do substantial gainful activity.” 20 C.F.R. § 404.1563(d) (emphasis added). Under all the circumstances, therefore, and recognizing that this is a close issue, we think the Secretary could properly conclude that the general work processes utilized in the checker one, final examiner, hand coil taper, and calibrator jobs are not so significantly different from those involved in claimant’s former cook job as to preclude a finding that claimant’s skills would be transferable with only minor vocational adjustment. There was adequate justification for the AU’s reliance on the vocational expert’s testimony. We find no error in the ALJ’s application of Rule 202.12 of the grid as a “framework for decisionmaking” within which he evaluated the vocational testimony. While the Secretary certainly could not apply the grid as dispositive in a case like this where claimant has demonstrated that he has significant nonexertional impairments, Burgos Lopez v. Secretary of Health and Human Services, 747 F.2d 37 (1st Cir.1984), section 200.00(e)(2) of 20 C.F.R., Part 404, Subpart P, Appendix 2 expressly allows some limited reference to the grid for guidance in such a case. It states, (2) However, where an individual has an impairment or combination of impairments resulting in both strength limitations and nonexertional limitations, the rules in this subpart are considered in determining first whether a finding of disabled may be possible based on the strength limitations alone, and if not, the rule(s) reflecting the individual’s maximum residual strength capabilities, age, education, and work experience provide a framework for consideration of how much the individual’s work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations. (emphasis added). Nor did the AU err in making reference to Rule 202.12. That rule provides for a finding of not disabled where a claimant is closely approaching advanced age, is at least literate and able to communicate in English, and has transferable skills from previous skilled or semi-skilled work experience. We have already stated our view that there is substantial evidence in the" }, { "docid": "12062118", "title": "", "text": "any substantial gainful activity by reason of any medically determinable ... impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). With certain exceptions, however, a person is “under a disability only if his ... impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy....” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Implementing regulations promulgated by the Secretary set up a five-step inquiry for the evaluation of a disability claim. The claimant must show that (1) he is not presently engaged in “substantial gainful activity,” 20 C.F.R. §§ 404.1520(b), 416.-920(b); (2) he has a “severe impairment,” i.e., one which “specifically limits [his] ... ability to do basic work activities,” 20 C.F. R. §§ 404.1520(c), 416.920(c); and either (3) his impairment “meets or equals” an impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P, which, if shown, is conclusive on the issue of disability, 20 C.F.R. §§ 404.1520(d), 416.920(d); or (4) he is incapable of performing his previous work, 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant makes the step four showing, then the Secretary, at step five, considers the claimant’s age, education, past work experience, and residual functional capacity to determine if he can do “other work.” 20 C.F.R. §§ 404.1520(f), 416.-920(f). B. Prior Proceedings. After appellant’s application for disability benefits was initially denied, he requested and was given a hearing, at which he elected to proceed without counsel before an Administrative Law Judge, acting as the Secretary’s initial delegate. The AU determined (at step three) that his impairment does not “meet or equal” those listed in Appendix 1, and (at step four) that appellant is unable to perform his past work, but (at step five) denied benefits based upon testimony from a vocational expert to the effect that appellant had acquired from his last job “transferrable skills including su pervising," }, { "docid": "18274849", "title": "", "text": "severe impairment, the AU must examine whether or not her impairment falls within those listed in Appendix 1 and thus qualifies automatically for disability benefits. If Plaintiff’s impairment is not delineated in Appendix 1, the AU must determine next whether Plaintiff’s impairment prevents her from doing any work she has done in the past. If claimant cannot do her past relevant work, or has no past relevant work, the AU will consider the Plaintiff’s age, education, past work experience and residual functional capacity to determine whether there is any work in the national economy that she can do. 20 C.F.R. § 404.1561. If there is no work that Plaintiff can do, she will be deemed disabled. Plaintiff bears the burden of proving that her impairment prevents her from doing her previous work. Goodermote v. Secretary of Health and Human Services, 690 F.2d 5, 7 (1st Cir.1982). If she meets this burden, or if she has no past relevant work, 20 C.F.R. § 404.1565, the burden shifts to the Secretary to show that “there are other jobs in the economy that claimant can nonetheless perform.” Goodermote, 690 F.2d at 7; Vasquez v. Secretary of Health and Human Services, 683 F.2d 1, 2 (1st Cir.1982); Small v. Califano, 565 F.2d 797, 800 (1st Cir.1977). “Such a showing is met by reliance on the testimony of a vocational expert, or by applying the relevant medical-vocational guidelines” in 20 C.F.R. § 404 Subpart P, App. 2. Williford v. Secretary of Health and Human Services, 550 F.Supp. 248, 251 (D. Ohio 1982). Since the AU determined that Plaintiff’s impairment was non-exertional, he did not apply the Appendix 2 “Grid,” which regularly supplants the role of the vocational expert in cases of exertional impairments, to Plaintiff’s case. 20 C.F.R. § 404 Subpart P, App. 2, 200.00(e). Torres v. Secretary of Health and Human Services, 677 F.2d 167 (1st Cir.1982). Instead, the AU properly enlisted the services of a vocational expert to determine whether a job existed in the national economy which Plaintiff, given her age, education, work history and mental impairment could perform. 20 C.F.R. §" }, { "docid": "22771511", "title": "", "text": "residual functional capacity, age, education, and past work experience. He then turned to the Medical-Vocational Guidelines, 20 C.F.R. § 404, Subpart P, Appendix 2. The guidelines are a matrix combining various permutations of the four essential factors noted above. See Santise v. Schweiker, 676 F.2d 925, 927-28 (3d Cir. 1982). Once the AU has determined as a matter of fact into which category a claimant’s age, education, work experience, and residual functional capacity fit, the guidelines direct a conclusion concerning a claimant’s disability. 20 C.F.R. § 404, Sub-part P, Appendix 2, § 200.00(a). That portion of the guidelines applicable to Mr. Podedworny is as follows: ' Previous Work Rule Age Education Experience Decision 201.10 Closely ap- Limited or Skilled or Disabled proaching less semi-skilled— advanced skills not age transferable „ » semi-skilled; XT ir.. ... . , Not Disabled skills transferable In view of his findings of fact, the AU applied Rule 201.11, which dictated the conclusion that appellant was not disabled. Because this case was decided on the grids, the Secretary concedes that, if appellant has no transferable skills, Rule 201.10 would apply and appellant would be declared disabled. II. This court may reverse a grant of summary judgment for the Secretary only if we conclude that her findings are not supported by substantial evidence. We have defined substantial evidence as “such relevant evidence as a reasoning mind might accept as adequate to support a conclusion.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.1981). Disability determination proceedings before an AU involve shifting burdens of proof. The claimant bears the initial burden of proving that he or she is disabled. The claimant satisfies this burden by showing that he or she cannot return to his or her customary occupation. Once this burden is met, the burden shifts to the Secretary, who must prove that the claimant can still engage in substantial gainful activity. The Secretary satisfies this burden by showing that given claimant’s age, education, and work experience, he or she can still perform specific jobs that exist in the national economy. Rossi v. Califano, 602 F.2d 55, 57" }, { "docid": "12662992", "title": "", "text": "“light” work. On review, the magistrate concluded that the AU’s finding was erroneous and substituted a finding that Paulson is capable of “sedentary” work. Thus, the AU applied the wrong table in evaluating Paulson’s capacity to perform substantial gainful work. Table No. 1 applies where the claimant’s residual functional capacity is limited to “sedentary” work. Having determined that Table No. 1 applies, a review of each of the four vocational factors is required. Paulson was 51 years old at the time of his hearing. The AU correctly found that Paulson was a person “closely approaching advanced age.” See 20 C.F.R. § 404.1563(c). Paulson attended school until the eighth grade. Based on this information, the AU accurately concluded that Paulson had a “limited education.” See 20 C.F.R. § 404.1564(b)(3). Hence, considering Paul-son’s “sedentary” residual functional capacity, his age and education, a determination of Paulson’s disability status turns upon which of the three grid rules—201.09, 201.10, or 201.11—is to be used as the framework for determining whether Paul-son is disabled. The AU determined that Paulson’s previous employment was semi-skilled, and that such skills were transferable. In the text of his written decision, however, and in reliance on the VE’s testimony, the AU merely noted: He has a limited education and his past work has been semi-skilled with transferability of those skills as set forth in the vocational testimony. However, considering the residual functional capacity and his age and education, the question of transferability of skills is not material herein. (Tr. 12-13; ER 7-8) (emphasis added). Because the AU was operating under the erroneous finding that Paulson could perform “light” work, the AU applied Grid Rules 202.10 and 202.11 of Table No. 2 to reach a conclusion of “not disabled.” Under either of these two rules, the issues of work experience and transferability are indeed irrelevant. Grid Rules 202.10, 202.11, and 202.12 each direct a finding of “not disabled,” irrespective of the level of a claimant’s skill and the transferability of those skills. Paulson, on appeal, endorses the AU’s finding that his prior truck driving work was “semi-skilled.” We likewise find no basis" }, { "docid": "7552298", "title": "", "text": "a case, such as Perez’s, where the claimant is not doing substantial gainful activity and is prevented by a severe medically determinable impairment from doing vocationally relevant past work. 20 C.F.R. § 404.1569 (1985). The guidelines operate by considering a claimant’s residual functional capacity, age, education, and work experience. After the AU determines the claimant’s residual functional capacity, age, education, and work experience, the AU ascertains whether the determinations coincide with those listed in the guidelines. If the factors do coincide, the guidelines direct the conclusion of whether a claimant is capable of other substantial gainful employment in the national economy. Id. at 1152. The guidelines, in effect, take administrative notice of the existence of jobs in the national economy that a person falling within the guidelines could fill. Salinas, 662 F.2d at 348. In the instant case the Secretary presented both a vocational expert and applied the guidelines. Perez argues that he was unable to perform any of the jobs suggested by the expert and that, therefore, the Secretary has not met her burden. We need not reach this question, however, because we find that there was substantial evidence to support the Secretary’s finding under the guidelines. When use of the guidelines is permitted, and when the AU chooses to use the guidelines, the AU begins by determining the claimant’s residual functional capacity, age, education, and work experience. The AU determined Perez’s residual functional capacity to be sedentary work, his age to be approaching advanced age, his education to be limited or less, and his work experience to be semiskilled — skills transferable. After making the necessary determinations, an AU using the guidelines next turns to 20 C.F.R. pt. 404, subpt. P, app. 2, and determines whether any of the guidelines coincide with the AU’s determinations. In appellant’s case one set of the guidelines coincided with the AU’s determinations: TABLE NO. 1 — RESIDUAL FUNCTIONAL CAPACITY: MAXIMUM SUSTAINED WORK CAPABILITY LIMITED TO SEDENTARY WORK AS A RESULT OF SEVERE MEDICALLY DETERMINABLE IMPAIRMENT(S) Rule 201.11 Age Closely approaching advanced age. Education Limited or less. Prev. Work Experience Skilled or semiskilled—" }, { "docid": "23594476", "title": "", "text": "1979 Kane suffered from a severe musculoskeletal impairment and could not return to his former job as a furniture salesman. These findings established the claimant’s prima facie case of disability, and shifted to the Secretary the burden of demonstrating that Kane is unable, “considering his age, education, and work experience, [to] engage in any other kind of substantial gainful work which exists in the national economy____” 42 U.S.C. § 423(d)(2)(A) (1982); Rossi v. Califano, 602 F.2d 55, 58 (3d Cir.1979). To perform the inquiry into residual work abilities that is required by the statute, the Secretary has promulgated medical-vocational guidelines. See 20 C.F.R., Pt. 404, Subpt. P, Apps. 1-2 (1985). These guidelines direct that certain impairments are so severe that claimants who suffer from them are considered disabled. See id. at App. 1. If these strict requirements are not met, the factfinder must apply the rules in Appendix 2, known as “the grids.” These rules take into consideration the claimant’s physical abilities, age, education, and work experience, and direct a finding of disability or lack of disability depending on the combination of these factors. The AU, as required, applied the grids in Kane’s case. He found that Kane remains capable of performing “light work,” has a limited education, and was 54 years old at the time he last met the earnings requirements. Rule 202.10 requires a finding of not disabled for such a claimant, whether or not his prior work skills are transferable. B. In applying the grids and noting Kane’s age as 54, despite the fact that Kane’s insured status expired only 48 days before his 55th birthday, the AU failed to consider 20 C.F.R. § 404.1563(a) (1985). That regulation lists the age categories used on the grids, but adds: “we will not apply these age categories mechanically in a borderline situation.” Because the AU did not address this relevant regulation; and because proper application of the regulation may change the result in this case, the matter must be remanded to the Secretary for further consideration. See Coulter v. Weinberger, 527 F.2d 224, 230 (3d Cir.1975). The choice of" }, { "docid": "23690047", "title": "", "text": "of interference with work performance.” The AU concluded that none of these impairments, when considered in isolation or in combination, met the listings in Appendix 1, Subpart P, Regulations No. 4, which would direct a finding that he was disabled. The AU further held that Ray’s testimony regarding the effect of his alco- holism on his ability to perform his work assignments was not credible in light of his employment records, which were free of disciplinary action for any alcohol-related incident. Though the AU concluded that Mr. Ray could not perform his past relevant work as a welder, he concluded that he retained the capability to do light work. Considering this residual functional capacity, along with Mr. Ray’s age, education and work experience, the AU concluded that the Medical-Vocational Guidelines directed a finding that he was not disabled at any time on or before December 81, 1981, which was the last date that he qualified for disability benefits. Ray filed exceptions to the AU’s recommended decision with the Appeals Council and introduced in evidence four additional exhibits relating to the severity of his alcoholism during the relevant period. The Appeals Council adopted the findings and conclusions of the AU, though it made several significant modifications to the AU’s decision. The Council noted first that because Mr. Ray’s alcoholism is classified as a mental impairment under the regulations (see 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 12.09), the AU should have evaluated the effects of his alcoholism on his ability to work according to the special procedures set out in the regulations. To correct the AU’s omission, the Appeals Council itself completed the required “Psychiatric Review Technique Form” and appended it to its decision. The Appeals Council further noted that, in light of Mr. Ray’s mental impairment, the AU’s reliance solely on the Medical-Vocational Rules in determining whether he was disabled was misplaced. The Appeals Council recognized that where a claimant has a combination of impairments that are both exertional and non-exertional, the Medical-Vocational Rules should be used only in evaluating the individual’s ex-ertional limitations. Once this determination has" }, { "docid": "7552299", "title": "", "text": "We need not reach this question, however, because we find that there was substantial evidence to support the Secretary’s finding under the guidelines. When use of the guidelines is permitted, and when the AU chooses to use the guidelines, the AU begins by determining the claimant’s residual functional capacity, age, education, and work experience. The AU determined Perez’s residual functional capacity to be sedentary work, his age to be approaching advanced age, his education to be limited or less, and his work experience to be semiskilled — skills transferable. After making the necessary determinations, an AU using the guidelines next turns to 20 C.F.R. pt. 404, subpt. P, app. 2, and determines whether any of the guidelines coincide with the AU’s determinations. In appellant’s case one set of the guidelines coincided with the AU’s determinations: TABLE NO. 1 — RESIDUAL FUNCTIONAL CAPACITY: MAXIMUM SUSTAINED WORK CAPABILITY LIMITED TO SEDENTARY WORK AS A RESULT OF SEVERE MEDICALLY DETERMINABLE IMPAIRMENT(S) Rule 201.11 Age Closely approaching advanced age. Education Limited or less. Prev. Work Experience Skilled or semiskilled— skills transferable. Decision Not disabled, 20 C.F.R. pt. 404, subpt. P, app. 2, rule 201.11 (1985). Applying his determinations about Perez’s residual functional capacity, age, education, and work experience to the guidelines, the AU determined that the guidelines directed that he find Perez not disabled. Id. Our review of the Secretary’s decision requires us to determine whether the AU’s and hence the Secretary’s determinations as to residual functional capacity, age, education, and work experience were supported by substantial evidence. Salinas, 662 F.2d at 349. The first finding made by the AU was that Perez’s residual functional capacity was sedentary work. The Social Security Administration defines sedentary as follows: Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." }, { "docid": "15849421", "title": "", "text": "1978. 3. The medical evidence establishes that the claimant has degenerative cervical arthritis, seizure disorder and obsessive-compulsive disorder, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Sub-part P, Regulations No. 4. 4. The claimant’s allegation that his impairments produce pain and other symptoms of sufficient severity to prevent all sustained work activity is not credible. 5. The claimant has the residual functional capacity to perform the physical exertion and non-exertional requirements of work except for his arthritis which probably prevents medium to heavy exertion, and his seizure disorder which would probably rule out work around his seizure disorder which would probably rule out work around unprotected heights or dangerous machinery (20 CFR 404.1545). 6. The claimant is unable to perform his past relevant work as a farmer and laborer, because of exertional demands. 7. The claimant’s residual functional capacity for the full range of light work is slightly reduced by the non-exertional limitations described in paragraph 5. 8. The claimant is 44 years old, which is defined as a younger individual (20 CFR 404.1563). 9. The claimant is a high school graduate (20 CFR 404.1564). 10. The claimant does not have any acquired work skills which are transferable to the skilled or semi-skilled work activities of other work (20 CFR 404.-1568). 11. Based on an exertional capacity for light, and the claimant’s age, education, and work experience, section 404.-1569 and Rule 202.21, Table No. 2, Appendix 2, Subpart P, Regulations No. 4 would direct a conclusion of the “not disabled.” 13. The claimant was not under a “disability,” as defined in the Social Security Act, at any time prior to December 30, 1982 or through the date of this decision (20 CFR 404.1520(f)). Claimant contends the AU improperly construed and overlooked pertinent evidence in finding that plaintiff was not disabled and in applying the grids. All of claimant’s impairments, singly and in combination, must be considered. Hawkins v. Heckler, 600 F.Supp. 832, 837 (D.Kan.1985). The AU’s order reflects little, if any, consideration of the cumulative" }, { "docid": "22189443", "title": "", "text": "vocational expert to determine a claimant’s eligibility for disability benefits. Pursuant to the 1979 regulations, however, “where the findings of fact made with respect to a particular individual’s vocational factors and residual functional capacity coincide with all of the criteria of a particular rule, the rule directs a conclusion as to whether the individual is or is not disabled.” 20 C.F.R. Subpart P, § 200.00; SSR § 82-41 (1979) (emphasis added). The regulations were promulgated “in an attempt to attain greater consistency in [disability] decisions,” Decker v. Harris, 647 F.2d 291, 294 (2d Cir.1981), by mandating certain con- elusions if specific sets of findings of fact are made. Id. at 296. Under the regulations, several initial determinations must be made to evaluate a claimant’s eligibility for benefits. When a disability claimant suffers from a severe impairment precluding return to his former employment but which does not automatically qualify him for benefits under 20 C.F.R. § 404.1521(d) (1984), the Secretary, or in cases at the hearing or Appeals Council level, the ALJ, is to make a specific finding of the claimant’s residual functional capacity for sedentary, light, medium, heavy, or very heavy exertional work. 20 C.F.R. § 404.1546 (1984). Once such a determination is made, the rules for decision specified in 20 C.F.R. § 404, App. 2, should be applied. Based upon the individual’s residual functional capacity, the claimant’s vocational abilities, i.e. his age, education, and work experience, including his transferable skills, and based on the availability of jobs within the national economy corresponding to the alternative functional levels of exertion, the rules yield a conclusion of disabled or not disabled. 20 C.F.R. § 200.00 (1984). Only if the findings of fact about a claimant do not fall within the categories specified in the Appendix are the rules inapplicable. 20 C.F.R. § 404.1569 (1984). Herein, the AU did not make the requisite determination which would have enabled him to apply the regulations. The AU relied on the vocational expert and made no express finding himself of appellant’s residual functional capacity. Thus, the AU violated 20 C.F.R. § 404.1546, which specifically states" }, { "docid": "23597070", "title": "", "text": "the claimant’s impairments prevent him from performing his past relevant work. If he is found to be capable of returning to his past relevant work, the claim is denied. If he is not found to be so capable, the fifth and final inquiry is whether the claimant is able to perform other forms of substantial gainful activity, considering his age, education, and prior work experience. If he is not the claim is approved. The medical-vocational guidelines, which are contained in Appendices 2, Subparts P and I, Parts 404 and 416,20 C.F.R., are used in determining whether the claimant is disabled when and if the fifth step in the evaluation process is reached. To apply the guidelines, the AU must make findings of fact as to the claimant’s vocational factors, i. e., age, education, and work experience, as those terms are defined by the regulations, 20 C.F.R. §§ 404.1506-.1508, 416.906-.908, and his residual functional capacity, 20 C.F.R. §§ 404.1505, 416.905. “[Wjhen the findings of fact made as to all factors coincide with the criteria of a rule, [contained in the guidelines], that rule directs a factual conclusion of disabled or not disabled.” 20 C.F.R. §§ 404.1513, 416.913. The regulations make clear, however, that the guidelines are not fully applicable in all cases in which the evaluation process reaches the fifth step. The guidelines are predicated on an individual’s having an impairment which manifests itself by limitations in meeting the strength requirements of jobs, so-called exertional limitations. They do not take into consideration non-exertional limitations such as certain mental, sensory, or skin impairments. For this reason, where nonexertional limitations have been shown, either alone or in combination with exertional limitations, the guidelines cannot be used to direct a finding of not disabled. 20 C.F.R. Subpart P and I, Appendices 2, §§ 200.00(e). In such cases a finding of not disabled can be made only after further consideration of the claimant’s nonexertional impairments in light of his unique vocational characteristics. Id It is in this respect that plaintiff claims the ALJ erred in denying her claim. She claims that the ALJ mechanically applied" }, { "docid": "4702113", "title": "", "text": "full range of light work as defined in the regulations. 20 C.F.R. § 404.1567(b), § 416.967(b) (1986). This finding was in complete accord with Dr. Song’s determination (Tr. 193-194). Because substantial evidence in the record as a whole supports the AU’s factual finding that Barge can perform light work, this finding is conclusive. 42 U.S.C. § 405(g). Barge’s past relevant work required lifting a maximum of 50 pounds at a time, and, consequently, the AU found he was unable to return to his past job. The burden of going forward then shifted to the Secretary to show that there existed other substantial, gainful work which Barge could perform. McNeil, 614 F.2d 142 (7th Cir.1980). The Secretary has promulgated medical-vocational guidelines consisting of a matrix of four factors identified by Congress — physical ability, age, education and work experience — and set forth rules that identify whether jobs requiring specific combinations of these factors exist in significant numbers in the national economy. 20 C.F.R. Part 404, Subpart P, Appendix 2; Heckler v. Campbell, 461 U.S. 458, 103 5.Ct. 1952, 76 L.Ed.2d 66 (1983). Where a claimant’s qualifications correspond to the job requirement identified by a rule, the guidelines direct a conclusion as to whether work exists that the claimant can perform. If such work exists, the claimant is not considered disabled. Id. at 462, 103 S.Ct. 1952, 1955. Barge is 39 years old which is defined as a “younger person,” 20 C.F.R. § 404.1563(b), and has a “high school education,” 20 C.F.R. § 404.1564(b)(4), § 416.964(b)(4). In view of his age and residual functional capacity, the issue of transferability of work skills is not material. See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 202.00. Considering Barge’s age, education, work experience and residual functional capacity, Rule 202.-20, Appendix 2, directs a conclusion that he is not disabled. Heckler v. Campbell, supra. Because substantial evidence in the whole record supports the Secretary’s final decision that Barge is not under a disability as defined in the Social Security Act, the AU’s determination denying benefits should be affirmed. 42 U.S.C. § 405(g); Cummins" }, { "docid": "22937577", "title": "", "text": "activities is not disabled. 20 C.F.R. § 416.920(c). (3) A person whose impairment meets or equals one of the impairments listed in the regulations is conclusively presumed to be disabled. 20 C.F.R. § 416.920(d). (4) A person who is able to perform work she has done in the past is not disabled. 20 C.F.R. § 416.920(e). (5) A person whose impairment precludes performance of past work is disabled unless the Secretary demonstrates that the person can perform other work. Factors to be considered are age, education, past work experience, and residual functional capacity. 20 C.F.R. § 416.920(f). The Secretary may, in appropriate circumstances, use the Medical Vocational Guidelines (Grids), 20 C.F.R. § 404, subpt. P, App. 2, to determine whether other work exists that a claimant could perform. Heckler v. Campbell, 461 U.S. 458, 467-69, 103 S.Ct. 1952, 1957-58, 76 L.Ed.2d 66 (1983). In the present case, the AU conducted a hearing at which Reyes appeared and testified. The AU also considered medical evidence submitted by two doctors: Reyes’s treating physician and an examining physician who saw Reyes only once. Both physicians diagnosed Reyes as suffering from obesity, poorly controlled diabetes mellitus, and degenerative joint disease. The physicians differed, however, in their assessment of her functional capacity. The treat ing physician found that Reyes was disabled, whereas the examining physician found that Reyes had very minor limitations due to her impairments. The AU considered Reyes’s testimony and the medical evidence and found that Reyes does not have an impairment or combination of impairments that dictates an automatic finding of disability under the Social Security Act. He found that Reyes’s testimony regarding her pain and physical limitations was credible when viewed in the light of objective medical evidence. He concluded that she could not return to her former work as a farm laborer but that she did have the residual functional capacity to perform sedentary work. The AU then applied the Grids to determine whether jobs that Reyes could perform exist in the national economy. Because of Reyes’s advancing age, limited education, and lack of transferable work skills, the Grids dictated" }, { "docid": "23597069", "title": "", "text": "work experience must be considered in addition to the medical condition.” 43 Fed.Reg. 55.349 (1978). The regulations established a “sequential evaluation” for the adjudication of disability claims in which a series of inquiries are made of the individual to determine whether his claim meets the standards set down in the Act. The procedure has been succinctly described as follows: The first inquiry under the sequence concerns whether a claimant is currently engaged in substantial gainful employment. If it is found that he is, the claim is denied without reference to the other steps in the sequence. If he is not, the second inquiry is whether the claimant has a “severe” impairment. If he does not, the claim is denied. If a severe impairment is present, the third inquiry is whether such impairment meets or equals one of the impairments listed under Appendix I to Subpart P of the Administrative Regulations No. 4. If it does, the claim is approved. If it does, the claim is approved. If it does not, the fourth inquiry is whether the claimant’s impairments prevent him from performing his past relevant work. If he is found to be capable of returning to his past relevant work, the claim is denied. If he is not found to be so capable, the fifth and final inquiry is whether the claimant is able to perform other forms of substantial gainful activity, considering his age, education, and prior work experience. If he is not the claim is approved. The medical-vocational guidelines, which are contained in Appendices 2, Subparts P and I, Parts 404 and 416,20 C.F.R., are used in determining whether the claimant is disabled when and if the fifth step in the evaluation process is reached. To apply the guidelines, the AU must make findings of fact as to the claimant’s vocational factors, i. e., age, education, and work experience, as those terms are defined by the regulations, 20 C.F.R. §§ 404.1506-.1508, 416.906-.908, and his residual functional capacity, 20 C.F.R. §§ 404.1505, 416.905. “[Wjhen the findings of fact made as to all factors coincide with the criteria of a" }, { "docid": "22771509", "title": "", "text": "general mechanical knowledge.” The expert divided the job categories that he thought appellant could perform into the “handling category” and the “manipulating category.” He testified that jobs in the handling category which Mr. Podedworny could perform included component mounter, capacitor assembler, and box coverer. These are all routine, non-machine tasks involving little or no latitude for judgment, but call for “an inclination for routine, repetitive activities with some dexterity of the fingers, hands, eye-hand coordination, form perception and the ability and willingness to follow instructions.” The expert then testified that jobs in the manipulating category of work included a bench worker assembling scientific equipment, an assembler of light electrical equipment, and a module assembler of electric goods. Dr. Gannoway testified that mastery of all these jobs would require only brief, on-the-job training. In his decision the AU agreed that appellant is not able to engage in his prior work due to his inability to climb many steps, his dizzy spells, and his blurred vision. He concluded, however, that appellant was not disabled, essentially because: (1) appellant’s complaints of severe and constant pain were not substantiated by the record; (2) appellant retains the capacity to engage in a variety of sedentary exertional activities despite certain “non-ex-ertional impairments”; and (3) appellant’s work as a crane operator was skilled, and certain skills he developed are transferable to meet the requirements of certain sedentary jobs, i.e., capacitor assembler, component mounter, and box coverer. During both appellant’s original hearing and on remand, the AU arrived at his conclusion by applying the evaluation procedure required by 20 C.F.R. § 404.1520. After finding that appellant was not working, the AU considered whether appellant’s impairment met or equalled an impairment listed in the Secretary’s Listing of Impairments, 20 C.F.R. § 404, Subpart P, Appendix l. After finding appellant’s impairments were not included in that list, the AU considered whether appellant could continue the type of work he had performed in the past. After concluding that appellant could not continue that type of work, the AU examined the four essential factors set out in 20 C.F.R. § 404.1505: appellant’s" }, { "docid": "22270903", "title": "", "text": "from performing past work, the Secretary has the burden of going forward and showing that the claimant, considering his age, education, work experience, skills and physical shortcomings, has the capacity to perform an alternate job and that this type of job exists in the national economy. Hall v. Harris, 658 F.2d 260, 264 (4th Cir.1981). The Secretary can meet this burden by proper reference to the medical-vocational guidelines set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 2. See Heckler v. Campbell, 461 U.S. 458, 461,103 S.Ct. 1952,1954, 76 L.Ed.2d 66 (1983). However, in cases such as Coffman’s, reference which routinely and mechanically follows the provisions of the guidelines is not proper. See id. at 471, 103 S.Ct. at 1959 (Brennan, J., concurring). The guidelines provide an AU with administrative notice of classes of jobs available in the national economy for persons who have, among other things, certain disability characteristics such as strength or exertional limitations. See 20 C.F.R. Pt. 404, Subpt. P., App. 2 §§ 200.00-204.00. The guidelines do not take into account nonexertional limitations such as pain, loss of hearing, loss of manual dexterity, postural limitations and pulmonary impairment. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir.1983). When nonexertional limitations such as these occur in conjunction with exertional limitations, the guidelines are not to be treated as conclusive. Roberts v. Schweiker, 667 F.2d 1143, 1145 (4th Cir.1981); 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(a), (d)-(e)(2); 20 C.F.R. § 404.1569. Without any substantial supportive evidence, the AU found that Coffman had functional capacity to perform medium work as defined in 20 C.F.R. § 404.1567(c), i.e., “lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” He then found: Considering the claimant’s age, education, prior work experience and residual functional capacity to perform medium work, Rule 203.04 of Appendix 2, Sub-part P, Social Security Administration Regulations No. 4 applies and the claimant is found “not disabled.” This mechanical application of the guidelines, where, as here, substantial nonexertional impairments existed, constituted reversible error. See Hooper" }, { "docid": "22317262", "title": "", "text": "did not constitute one of the medical impairments found in the Listings, his disability claim was evaluated by the AU under 20 C.F.R. §§ 404.1520(e) &‘(f). Under these provisions, an individual is considered disabled if he has an impairment which prevents him from doing prior relevant work, and he does not have the residual functional capacity, the age, education or past work experience to perform other available work. See also 20 C.F.R. §§ 404.1545—404.1565 (1980) (addressing each of these factors in detail). In this case, the AU found that, while Hays’ back injury precluded him from engaging in past relevant work activity, he could perform “light work” as defined in 20 C.F.R. § 404.1567 (1989). Hays argues that the AU, in making this determination, erroneously applied the medical-vocational guidelines contained in 20 C.F.R. Chapter III, Part 404, Subpart P, Appendix 2, §§ 202.00-202.22 (1989) (the “Grids”), and failed to seek and consider the opinions of a vocational expert. Alternatively, Hays asserts that the AU’s conclusion regarding his ability to perform “light work” is not supported by substantial evidence. There is little merit to these arguments. First, the AU correctly applied section 202.21 of the Grids to Hays because he is a younger individual, has a high school diploma, and is a skilled worker with non-transferable skills. That section clearly indicates that an individual such as Hays who is capable of working in the national economy is not disabled under the Act. Second, the application of the Grids does not require the use and consideration of vocational expert testimony in cases such as this one where the claimant suffers only from exertional impairments. See Smith v. Schweiker, 719 F.2d 723, 725 (4th Cir.1984); Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir.1983). Third, the AU’s determination that Hays could perform “light work” is supported by substantial evidence in the record. For example, Dr. John McAllister, a neurological surgeon, examined Hays on March 13, 1986, and concluded: “He has pain with flexion and extension of his back, but not in a remarkable fashion.” See Transcript (“Tr.”) at 94. Dr. McAllister examined Hays" } ]

[ { "docid": "22750317", "title": "", "text": "are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision. The secondhand presentation to the decisionmaker by the caseworker has its own deficiencies; since the caseworker usually gathers the facts upon which the charge of ineligibility rests, the presentation of the recipient’s side of the controversy cannot safely be left to him. Therefore a recipient must be allowed to state his position orally. Informal procedures will suffice; in this context due process does not require a particular order of proof or mode of offering evidence. Cf. HEWJiandbook, pt. IV, § 6400 (a). ^ In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. E. g., ICC v. Louisville & N. R. Co., 227 U. S. 88, 93-94 (1913); Willner v. Committee on Character & Fitness, 373 U. S. 96, 103-104 (1963). What we said in Greene v. McElroy, 360 U. S. 474, 496-497 (1959), is particularly pertinent here: “Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment .... This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny.” Welfare recipients must therefore be given an opportunity to confront and cross-examine the" } ]

[ { "docid": "19756375", "title": "", "text": "Salerno, 481 U.S. at 746, 107 S.Ct. 2095. Unlike substantive due process, however, the procedures governing petitioners’ detention are uniform; that is, the same procedural scheme applies to all. For this reason, we shall consider petitioners’ procedural due process claims collectively in this joint order. This analysis begins with the Due Process Clause of the Fifth Amendment, which entitles petitioners to procedural due process of law in their deportation proceedings. “The constitutional sufficiency of the procedures provided in any situation, of course, varies with the circumstances.” Plasencia, 459 U.S. at 34, 103 S.Ct. 321 (citing Lassiter v. Department of Soc. Serv., 452 U.S. 18, 24-25, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). To determine what process is constitutionally mandated, the Court must review the existing procedural framework, then consider “the interest at stake for the individual, the risk of an erroneous deprivation of the interest through the procedures used as well as the probable value of additional or different procedural safeguards, and the interest of the government in using the current procedures.” Plasencia, 459 U.S. at 34, 103 S.Ct. 321 (citing Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). As stated above, the interest at stake is petitioners’ freedom; as a fundamental right, this interest is clearly substantial. The government’s interest in effectuating the safe removal of aliens ordered deported is also substantial, but as discussed above, this interest becomes less compelling as the probability of deportation decreases. The outcome thus hinges on the second part of the Matheivs test: the risk of erroneous deprivation and the value of additional procedures. The government defends the existing procedural framework as complying with due process. It points out that release decisions are based upon either the District Director’s review of the alien’s written submissions and administrative file or an interview with the alien and that the Director considers each of the nine factors set forth at 8 C.F.R. § 241.4 in making those decisions. This, the government submits, is more than sufficient process to ensure that only a minimal risk of erroneous deprivation of petitioners’ liberty" }, { "docid": "1367026", "title": "", "text": "of life, liberty[,] or property without due process of law”); see also Lynch v. Cannatella, 810 F.2d 1363, 1366 (5th Cir.1987 ) (excludable alien may not be subjected to brutality by government officials). In addition, procedural due process is available to aliens in some circumstances. See Landon v. Plasencia, 459 U.S. 21, 32-33, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) (“a continuously present resident alien is entitled to a fair hearing when threatened with deportation ... [and] has a right to due process” before being required to leave the country). Id. at 396. The Third Circuit then noted that, while the Supreme Court’s decision in Mezei has been “much criticized,” it is still controlling law. See id. It examined the law of its sister circuits and summarized as follows: case law holds there is no constitutional impediment to the indefinite detention of an alien with a criminal record under a final order of exclusion, deportation, or removal if (1) there is a possibility of his eventual departure; (2) there are adequate and reasonable provisions for the grant of parole; and (3) detention is necessary to prevent a risk of flight or a threat to the community. ’ Id. at 397. The court went on to note that it is “unrealistic” to assert that inadmissible aliens being detained by the INS are “not actually being ‘punished’ in some sense for their past conduct,” but explained that the power of Congress and the Executive to detain inadmissible aliens is well-established. See id. at 398. The Third Circuit held that the lengthy detention of inadmissible aliens with criminal records, where the INS cannot control the removal, does not violate due process where “appropriate provisions” for parole are available. See id. “So long as petitioner will receive searching periodic reviews, the prospect of indefinite detention without hope for parole will be eliminated.” Id. at 399. The court concluded that the Interim Procedures then-proposed by the INS for parole review of all inadmissible aliens other than Mariel Cubans provided, on their face, for the required searching periodic review. Id. at 399. III. JURISDICTION At the" }, { "docid": "9347857", "title": "", "text": "bona fide reason test is the same as the rational basis test). The limited role of courts in reviewing the substantive policy embodied in immigration statutes derives from the Constitution’s grant of plenary power to exclude aliens to Congress. See, e.g., Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) (noting that an alien’s initial admission into the United States is a privilege and wholly within the sovereign’s power to exclude aliens); Fiallo, 430 U.S. at 792, 97 S.Ct. 1473; Galvan v. Press, 347 U.S. 522, 529, 531-32, 74 S.Ct. 737, 98 L.Ed. 911 (1954) (holding that while aliens may receive procedural due process, the court’s ability to review the substantive policy of immigration statutes is limited to review for rationality). The Supreme Court has “long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.... [T]he power over aliens is of a political character and therefore subject to only narrow judicial review.” Fiallo, 430 U.S. at 792, 97 S.Ct. 1473 (citations omitted). In this case, the statute in question, 8 U.S.C. § 1154(c), easily withstands this deferential standard of review. Section 1154(c) denies aliens immediate relative visas when they marry American citizens for the purpose of obtaining U.S. residence. 8 U.S.C. § 1154(c). Congress presumably enacted § 1154(c) to prevent immigration fraud, which is a legitimate federal interest. Thus, § 1154(c) is “conceivably related to a federal interest,” and this Court must uphold its constitutionality even assuming Plaintiffs have established that it interferes with their fundamental right to marry. See Almario, 872 F.2d at 152. ii. Procedural Due Process Similarly, Plaintiffs failed to a state a procedural due process claim be cause Plaintiffs failed to properly allege a liberty or property interest. The Fourteenth Amendment prohibits the government from depriving persons of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Due Process Clause protects aliens physically present in the United States as well as citizens. Landon, 459 U.S. at 32-33, 103 S.Ct." }, { "docid": "23314681", "title": "", "text": "Once Congress chooses to create such a system of entitlements and promulgates rules which restrict the discretion of administrative officers to grant benefits under the system, a property interest is created that is accorded procedural due process protection. See Board of Regents v. Roth, 408 U.S. 564, 576-77, 92 S.Ct. 2701, 2708-09, 33 L.Ed.2d 548 (1972). Having concluded that an entitlement interest exists in the right to apply for SAW status, it remains for us to determine what safeguards due process requires. In evaluating the constitutional sufficiency of the procedures provided, we must consider (1) the interest at stake for the individual, (2) the risk of an erroneous deprivation of the interest through the procedures used and the probable value of additional procedural safeguards, and (3) the government’s interest in avoiding the potential burdens that the additional or substitute procedures would entail. Mathews, 424 U.S. at 335, 96 S.Ct. at 903; see also Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 330, 74 L.Ed.2d 21 (1982) (Mathews test appropriate for evaluation of procedures in immigration context). Plaintiffs’ interest in establishing their entitlement to adjustment under the SAW program is plain. Evidence as to the second Mathews factor is equally persuasive. Without an adequate interpreter at the interview, the risk of an erroneous recommendation is unacceptably high. The ability of the adjudicator at the interview to make a reasonable assessment of the applicant’s credibility is obviously hampered by his inability to understand the applicant’s statements. Furthermore, the preclusion of witness testimony clearly increases the risk of erroneous determinations in light of the practice of cursorily denying applications accompanied only by affidavits, especially in cases involving inadequate documentation of employment history. Paragraphs (6) and (7) of the district court’s order require no more than is required by IRCA, its accompanying regulations and INS procedures. Appellants concede that the SAW program requires that an interpreter be used in every case where the applicant does not understand the adjudicator. The INS Examinations Handbook directs the examining officer to “make certain whether the services of an interpreter are required” if the person being" }, { "docid": "4125959", "title": "", "text": "is entitled to the protections of due process. The district court erred in holding that there was no protected interest. B The district court alternatively determined that, even if there were a protected liberty or property interest, the claims failed because the Plaintiffs failed to show prejudice. The question of whether a plaintiff must demonstrate prejudice in the context of an 1-130 visa petition is not settled. The government asserts that a prejudice showing is required, citing Padilla v. Ashcroft, 334 F.3d 921, 924-25 (9th Cir.2003). But Padilla and its progeny involve deportation or removal proceedings, and the government has been unable to cite a case in support of its position in the visa context. As we discussed earlier in rejecting Ching’s APA claim, visa and removal proceedings, and the rights that attach to each, are different. However, we need not resolve that question, because the Plaintiffs demonstrated sufficient prejudice. Fong’s signed statement was accepted as true without affording the Plaintiffs the opportunity for cross-examination, and in the face of contradictory documents and affidavits. As the Supreme Court has explained, “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Kelly, 397 U.S. at 269, 90 S.Ct. 1011. An opportunity to confront and cross examine “‘is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.’ ” Id. at 270, 90 S.Ct. 1011 (quoting Greene v. McElroy, 360 U.S. 474, 496-97, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959)). The prejudice “standard does not demand absolute certainty; rather preju dice is shown if the violation potentially affects the outcome of the proceedings. We may infer prejudice even absent any allegations as to what the petitioner or his witnesses might have said.... ” Zolotukhin v. Gonzales, 417 F.3d 1073, 1077 (9th Cir.2005) (internal quotation marks, citation, and alteration omitted). Therefore, the Plaintiffs’ “showing is sufficient to establish prejudice.” Amponsah v. Holder, 709 F.3d 1318, 1327" }, { "docid": "5915429", "title": "", "text": "Eldridge. The dissent, however, skips over the fact that our circuit, as well as other circuits, has already determined that a due process right to present oral testimony in asylum cases exists, especially in cases that hinge on credibility. See, e.g., Colmenar, 210 F.3d at 971-72; Kerciku v. INS, 314 F.3d at 918. Nonetheless, a Mathews analysis only supports our conclusion. Under Mathews, we determine what process is due by balancing (1) the private interest at stake, (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional ... safeguards,” and (3) the government’s interest, including the burdens of any additional process. 424 U.S. at 335, 96 S.Ct. 893. The first factor weighs heavily in Oshodi’s favor. We have consistently recognized that deportation is a “particularly severe penalty.” Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1481, 176 L.Ed.2d 284 (2010) (internal quotation marks omitted); see also Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) (“Plasencia’s interest here is, without question, a weighty one. She stands to lose the right to stay and live and work in this land of freedom. Further, she may lose the right to rejoin her immediate family, a right that ranks high among the interests of the individual.”) (internal quotation marks and citation omitted). In the case of an asylum and withholding of removal applicant, the private interest could hardly be greater. If the court errs, the consequences for the applicant could be severe persecution, torture, or even death. INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (“Deportation is always a harsh measure; it is all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country.”). The second factor in the Mathews balancing test is the adequacy of the challenged procedure: in this case, the denial of an asylum applicant’s ability to testify about the contents of his asylum" }, { "docid": "4125966", "title": "", "text": "long he was interviewed, by whom he was interviewed, and what, if anything, he benefitted from his statement. These questions are far from speculative, and given that the BIA was willing to reject Plaintiffs’ evidence on the sole basis of Fong’s six-sentence “detailed affidavit,” the risk of erroneous deprivation and the likely probative value of additional process are both great. This factor strongly favors Plaintiffs. 3 In assessing the final Mathews factor, we consider the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Clearly, the government has a substantial interest in preventing marriage fraud and in avoiding erroneously providing benefits. “Those who engage in [marriage fraud] unfairly cut in front of those aliens lawfully waiting in line to emigrate here. This kind of marriage fraud undermines the sovereign power of the United States to control who may be allowed resident status.” Azizi v. Thornburgh, 908 F.2d 1130, 1141 (2d Cir.1990) (Cardamone, J., dissenting). On the other hand, there is a significant public interest in allowing those who are legitimately married to receive the benefits intended for them. The additional procedures would entail the minimal cost to the government of holding an additional hearing in this case, and “[flinancial cost alone is not a controlling weight in determining whether due process requires a particular procedural safeguard prior to some administrative decision.” Mathews, 424 U.S. at 348, 96 S.Ct. 893. Additionally, because the process sought by Plaintiffs is guaranteed to aliens in removal proceedings, there are no practical problems with such a requirement. See INA § 240(b), 8 U.S.C. § 1229a(b)(4) (“[T]he alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.”). Therefore, we conclude that “the fiscal and administrative burdens that the additional or substitute procedural requirement would entail” are relatively slight. See Mathews, 424 U.S. at 335, 96 S.Ct. 893. 4 Upon considering all three factors, the extreme weight of the first two factors leads us to conclude" }, { "docid": "5915428", "title": "", "text": "in his application. The end result of the IJ’s restriction on Oshodi’s testimony was that it “prevented the introduction of significant testimony,” Lopez-Umanzor, 405 F.3d at 1056, that was critical to the merits of his application. In Colmenar, which presented a very similar factual scenario, we rejected the BIA’s reasoning in this case. 210 F.3d at 972. The IJ cut off Colme-nar’s direct testimony but, at the close of his testimony, the government attorney and IJ asked him if he had anything to add. Id. We found those cursory questions insufficient to cure the IJ’s previous refusal to allow Colmenar to testify to the contents of his written application. Id. That Oshodi testified to some facts regard ing his application after the IJ’s instruction does not cure the IJ’s refusal to admit testimony on the most significant events underlying Oshodi’s withholding of removal and CAT claims—testimony which was critical to the IJ’s credibility analysis. B. The dissent faults our due process analysis for failing to begin by conducting the balancing test outlined in Mathews v. Eldridge. The dissent, however, skips over the fact that our circuit, as well as other circuits, has already determined that a due process right to present oral testimony in asylum cases exists, especially in cases that hinge on credibility. See, e.g., Colmenar, 210 F.3d at 971-72; Kerciku v. INS, 314 F.3d at 918. Nonetheless, a Mathews analysis only supports our conclusion. Under Mathews, we determine what process is due by balancing (1) the private interest at stake, (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional ... safeguards,” and (3) the government’s interest, including the burdens of any additional process. 424 U.S. at 335, 96 S.Ct. 893. The first factor weighs heavily in Oshodi’s favor. We have consistently recognized that deportation is a “particularly severe penalty.” Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1481, 176 L.Ed.2d 284 (2010) (internal quotation marks omitted); see also Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) (“Plasencia’s interest" }, { "docid": "5915467", "title": "", "text": "can be satisfied with something far less formal than a hearing that conforms “to the forms of judicial procedure.” To determine whether a particular procedure is constitutionally required in removal proceedings, we must balance the various interests at stake. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); see also Landon v. Plasencia, 459 U.S. 21, 34-35, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). The majority begins its balancing in a curious way: by telling us that it’s meaningless because we’ve already found there’s a constitutional right to present oral testimony in removal proceedings. The case that supposedly established this right, Colmenar v. INS, 210 F.3d 967 (9th Cir.2000), found a denial of due process when the IJ announced that he’d made up his mind before the hearing began, “behaved ... as a partisan adjudicator seeking to intimidate,” and refused to allow the petitioner to testify to clearly relevant matters not covered in his written application. Id. at 971. So Colmenar has little in common with our case and, in any event, didn’t engage in a Mathews balancing. It rested instead on a single BIA case that had nothing to do with due process. Id. at 971-72 (discussing Matter of Fefe, 20 I. & N. Dec. 116, 118 (BIA 1989)). Having already figured out the right answer, my colleagues grudgingly go about showing their work. Under Mathews, we must balance (1) the private interest at stake; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional ... safeguards”; and (3) the government’s interest, which includes the burdens imposed by more process. Mathews, 424 U.S. at 335, 96 S.Ct. 893. I’m willing to indulge the majority’s assumption that the first factor weighs in favor of the immigrant, although I rather suspect that many asylum applicants and their lawyers would dearly love to have an excuse to avoid testifying without creating an adverse inference. But the majority’s perfunctory examination of the benefit of additional procedural safeguards and the burden those procedures will impose falls far" }, { "docid": "4125964", "title": "", "text": "of this “detailed” statement alone that the prior marriage was fraudulent. An unexpected visit from government officers can be quite intimidating, particularly if the officials point out that having filed a fraudulent 1-130 petition could result in a $250,000 fine and imprisonment for up to five years. See 8 U.S.C. § 1325(c). The BIA even noted that Fong made his statement “against his own interest,” though that statement is unsupported by the record. The Supreme Court has explained that “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg, 397 U.S. at 269, 90 S.Ct. 1011. An opportunity to confront and cross examine “ ‘is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.’ ” Id. at 269-70, 90 S.Ct. 1011 (quoting Greene v. McElroy, 360 U.S. 474, 496-97, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959)). Many ex-spouses could be motivated by “malice, vindictiveness, ... or jealousy.” These nefarious motivations are even more likely if the marriage (and subsequent divorce) were bona fide. The risk of erroneous deprivation is particularly high in a case such as this, where the visa petitioner has substantial evidence that the first marriage was bona fide. Ching presented extensive details of her marriage to Fong, including descriptions of intimate conversations, and evidence of her life with Fong, including bills and a lease. When there is such compelling evidence to rebut the prior spouse’s claim of marriage fraud, there is a high risk of erroneous deprivation when the agency relies exclusively on written evidence. As to the probative value of additional procedural safeguards, Fong could have elaborated on his fraudulent marriage to Ching and explained under what conditions he wrote the statement that he and Ching “did not marry for love.” Plaintiffs also explain they would attempt to find out about any incentives Fong was offered before he signed the statement, and would want to know how" }, { "docid": "4125962", "title": "", "text": "provided in Mathews. There, the Supreme Court identified the factors to be considered in determining whether additional due process is required: [I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335, 96 S.Ct. 893. 1 The first Mathews factor is an assessment of the private interest that will be affected by the official action. Here, Plaintiffs explain that “[without an 1-130 approval, Ms. Ching faces imminent removal from the United States, thus undoubtedly causing immense hardship to herself and her husband.” The right to marry and to enjoy marriage are unquestionably liberty interests protected by the Due Process Clause. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (holding that protected liberty interests include “the right of the individual ... to marry, establish a home and bring up children”). The right to live with and not be separated from one’s immediate family is “a right that ranks high among the interests of the individual” and that cannot be taken away without procedural due process. Landon v. Plasencia, 459 U.S. 21, 34-35, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). Therefore, the first Mathews factor favors Joseph and Ching. 2 The second Mathews factor we consider is the risk of an erroneous deprivation of such interest through the procedures used and the probative value of additional procedural safeguards. In this case, the risk of an erroneous finding that a prior marriage was fraudulent is high in eases where an ex-spouse is relied upon for evidence that the previous marriage was fraudulent. Here, for example, USCIS officers went to Fong’s home and solicited from him his six-sentence statement; the BIA concluded on the basis" }, { "docid": "13505488", "title": "", "text": "process protections are afforded in the immigration context, the Mathews test is nevertheless required to assess the constitutionality of the procedures employed. Flores, supra, at 1336-37. Additionally, in Landon, the Supreme Court applied the Mathews test in determining the procedures due a present permanent resident alien. Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 330, 74 L.Ed.2d 21 (1982). Thus, the Court is persuaded that it should utilize the Mathews balancing test to determine whether the procedures afforded aliens who meet aggravated felon status and who are being detained pending a final determination of deportability, meet with the requirements of the Constitution. Under the test set forth in Mathews, this Court must weigh three factors: “1) The private interest affected; 2) the risk of an erroneous deprivation of such interest through the procedures currently used, and the probable value, if any, of additional or substitute procedural safeguards; and 3) the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903. The private interest at stake is the alien’s right to bail pending final deportation proceedings. By alleging that he is entitled to a bond hearing the petitioner is effectively asserting that he has, in the first instance, a right to a bail. To cloak his prayer for relief as merely a request for a hearing disguises the essence of the issue. Implicitly, by mandating detention without release pending a final determination of de-portability, Congress has determined that such a hearing is unnecessary. In evaluating this alleged right, Section 1252(a)(2) does not deprive petitioner of a vitally protected interest under the Mathews test. Petitioner has not cited a case which finds that an alien has a fundamental right to bail. Indeed, the Supreme Court has determined that bail may be denied in certain circumstances without depriving an individual of any constitutional guarantees. Carlson v. Landon, 342 U.S. 524, 542, 72 S.Ct. 525, 535, 96 L.Ed. 547 (1952); see also United States v. Salerno, 481 U.S. at 753-54," }, { "docid": "12065447", "title": "", "text": "hearing or afford a couple an opportunity to demonstrate that they have a bona fide marriage prior to expulsion or exclusion. The district court ruled that § 5 “creates the irrebuttable presumption that an alien who marries during deportation or exclusion proceedings has entered into a fraudu lent marriage.” Azizi v. Thornburgh, 719 F.Supp. 86, 88 (D.Conn.1989). I disagree. No such presumption exists. Rather, the statute permits an alien who marries during deportation proceedings to petition for permanent resident status after completing the two-year exile. Thus, § 5 may be viewed as serving two functional objectives: detecting and deterring marriage fraud that is, detecting marriage fraud by waiting to see which marriages or petitions survive the two-year delay, and deterring it by postponing the application for residency. B. Procedural Due Process. The Supreme Court has repeatedly recognized that in reviewing Congress’ control over immigration a distinction is drawn between (1) legislation that defines substantive categories of aliens subject to different immigration restrictions, and (2) legislation that establishes procedures for enforcing the different treatment prescribed for the different categories of aliens. Congress’ choices regarding categories of aliens and its determination regarding which groups of aliens are entitled to enter or stay in the United States are subject only to the most narrow judicial review; but once those choices have been made the procedures enacted to enforce Congress’ will are judicially scrutinized under the traditional standards of procedural due process. See Landon v. Plasencia, 459 U.S. 21, 32, 34-35, 103 S.Ct. 321, 329, 330-31, 74 L.Ed.2d 21 (1982) (“once an alien gains admission to our country and begins to develop ties that go with permanent residence ... [he] is entitled to a fair hearing when threatened with deportation”); Francis v. INS, 532 F.2d 268, 273 (2d Cir.1976). In Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721 (1903), the Supreme Court held that an alien who has entered the country and established residency here, even if illegally, is entitled to an “opportunity to be heard upon the questions involving his right to be and remain" }, { "docid": "22725705", "title": "", "text": "is to ensure that an asylum petitioner receives a meaningful hearing. If a petitioner is not able to examine the evidence against him, to present evidence on his own behalf, or to cross-examine witnesses to the extent of his statutory rights under 8 U.S.C. § 1229a(b)(4), then he has failed to receive a full and fair hearing consistent with due process. Jacinto v. INS, 208 F.3d 725, 727-28 (9th Cir.2000) (\"When these [statutory] protections are denied and such denial results in prejudice, the constitutional guarantee of due process has been denied.”); Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). . The INS maintains that Mathews v. Eldridge is inapplicable to Rusu’s case. It observes that, while Mathews v. Eldridge lays out the requirements for procedural due process, i.e., the procedures the Government must observe before depriving an individual of life, liberty, or property, Rusu, as an illegal immigrant, has no legally protected liberty interest in remaining in the United States. The Government is correct on this point; Rusu has no vested \"right to stay and live and work in this land of freedom.” Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). Nevertheless, it is well established that “[e]ven one whose presence in this country is unlawful, involuntary, or transitory is entitled to [the] constitutional protection” of the Fifth Amendment's Due Process Clause. Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). As such, an illegal alien possesses an identifiable liberty interest in being accorded “all opportunity to be heard upon the questions involving his right to be and remain in the United States” before being deported. Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86, 101, 23 S.Ct. 611, 47 L.Ed. 721 (1903). Although Rusu’s interest is, in these circumstances, substantially attenuated, it remains a cognizable interest within the Mathews v. Eldridge framework. . Rule 43 of the Federal Rules of Civil Procedure was amended in 1996 to permit video conferencing in certain circumstances, and the potential adverse impact of such technology on credibility determinations was observed" }, { "docid": "13505487", "title": "", "text": "and does not, in substance, offend the Constitution. Nevertheless, petitioner contends that the provision is violative of the Due Process clause in that it fails to allow for adequate procedures for detention pending a deportation hearing, namely an individualized bond hearing to determine whether the particular alien being detained is a threat to the community or a risk of flight. It must first be determined what is the appropriate inquiry into the adequacy of the process afforded, in light of the fact that traditional due process analysis is not applicable to immigration legislation. See Flores, supra, at 1336-37. The Government, relying on Anetekhai v. INS, 876 F.2d 1218, 1223 (5th Cir.1989), contends that a court must determine only whether the procedure in question is fair. (See Government’s Memorandum in Opposition to Plaintiff’s Motion to Reconsider, p. 17.) The petitioner contends that traditional inquiry set out in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976) should apply. In Flores, the Ninth Circuit determined that even though fewer procedural due process protections are afforded in the immigration context, the Mathews test is nevertheless required to assess the constitutionality of the procedures employed. Flores, supra, at 1336-37. Additionally, in Landon, the Supreme Court applied the Mathews test in determining the procedures due a present permanent resident alien. Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 330, 74 L.Ed.2d 21 (1982). Thus, the Court is persuaded that it should utilize the Mathews balancing test to determine whether the procedures afforded aliens who meet aggravated felon status and who are being detained pending a final determination of deportability, meet with the requirements of the Constitution. Under the test set forth in Mathews, this Court must weigh three factors: “1) The private interest affected; 2) the risk of an erroneous deprivation of such interest through the procedures currently used, and the probable value, if any, of additional or substitute procedural safeguards; and 3) the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v." }, { "docid": "4125967", "title": "", "text": "interest in allowing those who are legitimately married to receive the benefits intended for them. The additional procedures would entail the minimal cost to the government of holding an additional hearing in this case, and “[flinancial cost alone is not a controlling weight in determining whether due process requires a particular procedural safeguard prior to some administrative decision.” Mathews, 424 U.S. at 348, 96 S.Ct. 893. Additionally, because the process sought by Plaintiffs is guaranteed to aliens in removal proceedings, there are no practical problems with such a requirement. See INA § 240(b), 8 U.S.C. § 1229a(b)(4) (“[T]he alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.”). Therefore, we conclude that “the fiscal and administrative burdens that the additional or substitute procedural requirement would entail” are relatively slight. See Mathews, 424 U.S. at 335, 96 S.Ct. 893. 4 Upon considering all three factors, the extreme weight of the first two factors leads us to conclude that the process by which Joseph’s 1-130 petition was denied was inadequate. There were two witnesses to the Fong-Ching marriage: Fong and Ching. In this case, it is not possible to determine that Fong’s statement is true and that Ching’s is false solely by reading them. In addition, Ching presented substantial and—at this stage—uncontested documentary evidence to corroborate her claim that the marriage was bona fide. Therefore, under the specific circumstances of this case, due process required a hearing with an opportunity for Ching to confront the witnesses against her. Therefore, we must reverse the district court with instructions to remand the case to the agency for the purpose of holding an evidentiary hearing. IV In sum, the district court properly granted summary judgment on the APA claims. . It erred in granting summary judgment on the procedural due process claim. We reverse the district court’s grant of summary judgment as to the due process claim, and direct it to remand the case to the agency so that the agency may hold an evidentiary hearing." }, { "docid": "12065456", "title": "", "text": "as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process “due process of law,” by its mere will.’ ”) (quoting Murray’s Lessee v. Hoboken Land and Improvement Co., 18 How. 272, 276, 15 L.Ed. 372 (1855)). Three factors are weighed to determine whether § 5 satisfies the Due Process Clause: 1) the private interest affected, 2) the risk of an erroneous deprivation of this interest through the procedures established in the statute and the probable value of additional or substitute procedures, and 3) the government’s interest, including the burdens that additional or substitute procedures would create. Mathews v. Eldridge, 424 U.S. 319, 332-35, 96 S.Ct. 893, 901-03, 47 L.Ed.2d 18 (1976); Plasencia, 459 U.S. at 34, 103 S.Ct. at 330. 1. The Private Interest Affected. An alien — even one who initially may have entered the country illegally — has a strong interest in remaining “in this land of freedom.” Plasencia, 459 U.S. at 34, 103 S.Ct. at 330; see also Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976); Rosenberg v. Fleuti, 374 U.S. 449, 460, 83 S.Ct. 1804, 1811, 10 L.Ed.2d 1000 (1963); Yamataya, 189 U.S. at 100-02, 23 S.Ct. at 614-15. Further, the rights protected by our Constitution include the right to marry and to have a marriage free from undue governmental interference. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923); Griswold v. Connecticut, 381 U.S. 479, 485-86, 85 S.Ct. 1678, 1682-83, 14 L.Ed.2d 510 (1965); see also id. at 495, 85 S.Ct. at 1687. (Goldberg, J., concurring). “The right to live with and not be separated from one’s immediate family is ‘a right that ranks high among the interests of the individual’ and that cannot be taken away without procedural due process.” Escobar v. INS, No. 89-5037, slip op. at 10-11 (D.C.Cir. Feb. 2, 1990) (quoting Plasencia, 459 U.S. at 34-35, 103 S.Ct. at 330-31), withdrawn pending reh’g en banc (April 25, 1990). In addition, a citizen spouse" }, { "docid": "22582293", "title": "", "text": "for, at the very least, the alien will without further recourse be held to be deportable and permanently excludable. 2. Mathews v. Eldridge The government maintains that the district court erred in evaluating the relevant interests under the calculus established in Mathews v. Eldridge. As the Mathews balancing test makes clear, whether a particular procedure is sufficient to satisfy due process depends on the circumstances. Thus, [i]n evaluating the procedures in any case, the courts must consider the interest at stake for the individual, the risk of an erroneous deprivation of the interest through the procedures used as well as the probable value of additional or different procedural safeguards, and the interest of the government in using the current procedures rather than additional or different procedures. Id. at 34, 96 S.Ct. 893 (citing Mathews, 424 U.S. at 319, 96 S.Ct. 893). We agree with the district court that the relevant factors weigh in favor of altering the document fraud forms. It is clear that the plaintiffs’ interests in this case are significant. See Plasencia, 459 U.S. at 34, 103 S.Ct. 321 (noting that the alien’s interest in deportation proceedings “is, without question, a weighty one” because “[s]he stands to lose the right ‘to stay and live and work in this land of freedom.’ ”) (quoting Bridges v. Wixon, 326 U.S. 135, 154, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945)). The government’s interests in the administration of its immigration laws and in preventing document fraud are likewise considerable. Id. Striking the proper balance between these interests can be achieved by adopting procedures that reduce the risk of erroneous deprivation without imposing an undue burden on the government. Requiring the government to alter slightly its procedures in document fraud proceedings will achieve the desired effect — additional safeguards — without visiting upon it any inordinate hardship. Specifically, it is possible to reduce the risk of erroneous deprivation {i.e., erroneous deportation) by ensuring that aliens facing charges of document fraud are adequately notified that they must request a separate hearing to contest those charges and that their failure to do so will ordinarily" }, { "docid": "4125965", "title": "", "text": "Many ex-spouses could be motivated by “malice, vindictiveness, ... or jealousy.” These nefarious motivations are even more likely if the marriage (and subsequent divorce) were bona fide. The risk of erroneous deprivation is particularly high in a case such as this, where the visa petitioner has substantial evidence that the first marriage was bona fide. Ching presented extensive details of her marriage to Fong, including descriptions of intimate conversations, and evidence of her life with Fong, including bills and a lease. When there is such compelling evidence to rebut the prior spouse’s claim of marriage fraud, there is a high risk of erroneous deprivation when the agency relies exclusively on written evidence. As to the probative value of additional procedural safeguards, Fong could have elaborated on his fraudulent marriage to Ching and explained under what conditions he wrote the statement that he and Ching “did not marry for love.” Plaintiffs also explain they would attempt to find out about any incentives Fong was offered before he signed the statement, and would want to know how long he was interviewed, by whom he was interviewed, and what, if anything, he benefitted from his statement. These questions are far from speculative, and given that the BIA was willing to reject Plaintiffs’ evidence on the sole basis of Fong’s six-sentence “detailed affidavit,” the risk of erroneous deprivation and the likely probative value of additional process are both great. This factor strongly favors Plaintiffs. 3 In assessing the final Mathews factor, we consider the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Clearly, the government has a substantial interest in preventing marriage fraud and in avoiding erroneously providing benefits. “Those who engage in [marriage fraud] unfairly cut in front of those aliens lawfully waiting in line to emigrate here. This kind of marriage fraud undermines the sovereign power of the United States to control who may be allowed resident status.” Azizi v. Thornburgh, 908 F.2d 1130, 1141 (2d Cir.1990) (Cardamone, J., dissenting). On the other hand, there is a significant public" }, { "docid": "4125963", "title": "", "text": "Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (holding that protected liberty interests include “the right of the individual ... to marry, establish a home and bring up children”). The right to live with and not be separated from one’s immediate family is “a right that ranks high among the interests of the individual” and that cannot be taken away without procedural due process. Landon v. Plasencia, 459 U.S. 21, 34-35, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). Therefore, the first Mathews factor favors Joseph and Ching. 2 The second Mathews factor we consider is the risk of an erroneous deprivation of such interest through the procedures used and the probative value of additional procedural safeguards. In this case, the risk of an erroneous finding that a prior marriage was fraudulent is high in eases where an ex-spouse is relied upon for evidence that the previous marriage was fraudulent. Here, for example, USCIS officers went to Fong’s home and solicited from him his six-sentence statement; the BIA concluded on the basis of this “detailed” statement alone that the prior marriage was fraudulent. An unexpected visit from government officers can be quite intimidating, particularly if the officials point out that having filed a fraudulent 1-130 petition could result in a $250,000 fine and imprisonment for up to five years. See 8 U.S.C. § 1325(c). The BIA even noted that Fong made his statement “against his own interest,” though that statement is unsupported by the record. The Supreme Court has explained that “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg, 397 U.S. at 269, 90 S.Ct. 1011. An opportunity to confront and cross examine “ ‘is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.’ ” Id. at 269-70, 90 S.Ct. 1011 (quoting Greene v. McElroy, 360 U.S. 474, 496-97, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959))." } ]

[ { "docid": "22212651", "title": "", "text": "any evidence developed or obtained by it subsequent to the issuance of the most recent SOC or SSOC with respect to such claim, the BVA must provide a claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it, and a reasonable opportunity for the claimant to respond to it. If, in the course of developing or obtaining or attempting to so develop or obtain such evidence, the BVA becomes aware of any evidence favorable to the claimant, it shall provide the claimant with reasonable notice of and a reasonable opportunity to respond to the favorable evidence, and shall in its decision provide reasons or bases for its findings with respect to that evidence. These requirements are implicit in Colvin and Hatlestad. In Hatlestad, we stated: The procedure that the Court called for in Colvin ... was designed to ensure “that all medical evidence contrary to the veteran’s claim will be made known to [the veteran] and be a part of the record before this Court.” ... ... [Quotations from medical treatises ... should be of sufficient length so that their context (both within the treatise in question and within the body of relevant medical literature) is able to be determined. Hatlestad, 3 Vet.App. at 217 (quoting Col-vin, 1 Vet.App. at 175) (emphasis added). Certainly, to be in proper context, quotations should include known material from literature that is both unfavorable and favorable to the claimant. The requirements we announce today apply only to the BVA. We express no view as to their applicability with respect to any other VA adjudications. The decision of the BVA is VACATED, and the matter is REMANDED for proceedings consistent with this opinion." } ]

[ { "docid": "9631251", "title": "", "text": "evidence developed or obtained by it subsequent to the issuance of the most recent Statement of the Case (SOC) or Supplemental SOC (SSOC), the BVA must provide the claimant with reasonable notice of such evidence and of the reliance that the Board proposes to place on it and must provide a reasonable opportunity for the claimant to respond to it. Thurber, 5 Vet.App. at 126. Thereafter, in Austin, the Court expanded upon Thurber and held that a BVA decision must be set aside where, at least in part, it “rests upon a medical opinion procured by a process that violates both the express holding of Thurber, supra, and the fair process principle underlying Thurber.” Austin, 6 Vet.App. at 551. The Court further expounded in Austin that a claimant’s reasonable opportunity to respond “was not limited to argument or comment, but also included the claimant’s right to submit additional evidence.” Ibid. Finally, in Austin the Court raised substantial questions about the process by which the policy of seeking BMAOs in general was adopted by the BVA Chairman and required that the Board, if BMAOs were to be used, address these questions, by either complying with certain regulations (e.g., 38 C.F.R. §§ 19.9, 20.903 (1996)) or providing reasons or bases explaining why such compliance was unnecessary. Austin, 6 Vet.App. at 553-54; see also Williams (Margie) v. Brown, 8 Vet.App. 133, 137 (1995). In the instant case, the Secretary concedes (Br. at 33) that the Court’s decision in Austin applies to the present case under Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991) (“where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should ... apply unless Congress provided otherwise or permitted the Secretary ... to do otherwise and the Secretary did so”). He is correct. See Williams, 8 Vet.App. at 136-38. As the Secretary also concedes (Br. at 26), the Austin requirement was violated in this case insofar as the record contains no indication that the claimant was expressly informed, directly" }, { "docid": "1132753", "title": "", "text": "these private medical records, the VA failed in its statutory duty to assist the appellant by seeking to obtain the report of the 1973 physical examination from Lincoln Electric Company. The BVA is also required to seek to obtain the appellant’s service medical records covering his military service in Germany. Accordingly, we find that the VA breached its duty to assist and therefore remand this case to the Board for development consistent with this opinion. D. Material Not Properly Before the Court In his informal brief, the appellant invites this Court to review a letter from Dr. Karen Allison. However, this letter postdates the Board determination of this matter, and is not contained in the appellant’s claim folder. The Court is precluded from considering any material that was not before the Secretary or the Board at the time of its decision since the Court reviews “the record of proceedings before the Secretary and the Board.” 38 U.S.C. § 7252(b); Stanton v. Brown, 5 Vet.App. 563, 566 (U.S.1993); Rogozinski v. Derwinski, 1 Vet.App. 19, 20 (1990). Accordingly, the letter of Dr. Allison is not properly before this Court and will not be considered. E. Failure to Give Notice Regarding Use of Medical Treatise In its January 3, 1992, decision, the Board cites to S. Turek, ORTHOPEDICS: PRINCIPLES and TheiR Applications (4th ed. 1984). The Boat'd relied upon this treatise to refute the appellant’s contentions; however, it offered him no notice of its use of an opportunity to respond to it. This Court has held that if the Board relies upon evidence developed after the most recent Statement of the Case or Supplemental Statement of the Case, it must provide a claimant with reasonable notice of the evidence, the reliance to be placed upon that evidence, and a reasonable opportunity to respond to the evidence. Thurber v. Brown, 5 Vet.App. 119, 126 (1993). Since the Board provided the appellant in this case with no notice of the use of the treatise, the reliance to be placed upon it, or a reasonable opportunity to respond to it, the Board’s determination is vacated, and" }, { "docid": "9631250", "title": "", "text": "6 Vet.App. 416, 425 (1994). D. § 1310 DIC Claim Based on Death from Service-Connected Disability The appellant contends that she was not given the opportunity, in violation of this Court’s opinions in Thurber v. Brown, 5 Vet.App. 119 (1993), and Austin v. Brown, 6 Vet.App. 547 (1994), to respond to Dr. Bailey’s medical report and that a remand is required for that reason. The Secretary concedes that the Board committed an Austin error but contends that it was not prejudicial to the appellant because there is a plausible basis in the record for the Board’s decision without the Board medical adviser’s opinion (BMAO). The Secretary contends that the evidence shows that the veteran did not have hypertension and that hypertension was not included in the autopsy report as a cause of death. Alternatively, he asserts that if the Court finds no plausible basis for the Board’s decision without consideration of the BMAO, then a remand is in order. 1. Austin error. In Thurber, the Court held that before the BVA may rely on any evidence developed or obtained by it subsequent to the issuance of the most recent Statement of the Case (SOC) or Supplemental SOC (SSOC), the BVA must provide the claimant with reasonable notice of such evidence and of the reliance that the Board proposes to place on it and must provide a reasonable opportunity for the claimant to respond to it. Thurber, 5 Vet.App. at 126. Thereafter, in Austin, the Court expanded upon Thurber and held that a BVA decision must be set aside where, at least in part, it “rests upon a medical opinion procured by a process that violates both the express holding of Thurber, supra, and the fair process principle underlying Thurber.” Austin, 6 Vet.App. at 551. The Court further expounded in Austin that a claimant’s reasonable opportunity to respond “was not limited to argument or comment, but also included the claimant’s right to submit additional evidence.” Ibid. Finally, in Austin the Court raised substantial questions about the process by which the policy of seeking BMAOs in general was adopted by the BVA" }, { "docid": "21542004", "title": "", "text": "no obligation to advise the appellant as to the “Dr. Karen” statement, because, as the Court concluded above, that statement would not have helped prove the claim. In Thurber v. Brown, the Court held: [B]efore the BVA relies, in rendering a decision on a claim, on any evidence developed or obtained by it subsequent to the issuance of the most recent [Statement of the Case (SOC) ] or [Supplemental (SOC) ] with respect to such claim, the BVA must provide a claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it and a reasonable opportunity for the claimant to respond to it. Thurber, 5 Vet.App. 119, 126 (1993). The BVA, in the June 1993 decision here on appeal, cited several medical texts, but the record does not indicate that the appellant was given a Thurber notification. R. at 9-10. In Jones (Wayne) v. Brown, the Court held that where a claimant had not presented a well-grounded claim, the BVA’s failure “to provide him with notice of and an opportunity to respond to the Board’s use of a treatise” was nonprejudicial error. Jones, 7 Vet.App. 134, 137 (1994); see also Yabut v. Brown, 6 Vet.App. 79, 83 (1993). Because the appellant in the instant case failed to submit a well-grounded claim under 38 U.S.C. § 5107(a), VA was not required to carry her claim to full adjudication, and thus any error in the subsequent administrative proceedings as to that claim — the Board’s citation to medical treatises apparently without giving the appellant notice and an opportunity to respond — was not prejudicial to the appellant. See Jones and Yabut, both supra. Finally, as to the appellant’s contention that the Secretary was obligated under his 38 U.S.C. § 5107(a) duty to assist to seek to obtain medical records of treatment by “Dr. Karen”, the duty to assist was not triggered because the DIC claim was not well grounded. III. Conclusion Accordingly, in view of the foregoing analysis, the Court holds that the appellant has not demonstrated that the BVA committed error — in its findings" }, { "docid": "23312962", "title": "", "text": "or, in the opinion of the BVA, of doubtful weight or credibility, the BVA is always free to supplement the record by seeking an advisory medical opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. (Citations omitted.) In Hatlestad, 3 Vet.App. at 217, the Court “amplified] the requirement set forth in Colvin,” and held that when utilizing medical treatises, “the Board should ... include in its decisions quotations from [them] ... of sufficient length so that their context ... is able to be determined.” Finally, the Court’s holding in Thurber, 5 Vet.App. at 126, applies to “any evidence developed or obtained by [the BVA] subsequent to the issuance of the most recent [Statement of the Case (SOC) ] or [Supplemental Statement of the Case (SSOC) Evidentiary development by the BVA is consistent with statutory authority also suggestive of a BVA fact-finding role. See, e.g., 38 U.S.C. § 7104(a) (“Board shall decide [an] ... appeal only after affording the claimant an opportunity for a hearing. Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation”); 38 U.S.C. § 7109 (empowers the Board to “secure an advisory medical opinion”); 38 U.S.C. § 7110 (“A claimant may request a hearing before a traveling section of the Board”); 38 U.S.C. § 7261(c) (providing that “in no event shall findings of fact made by the ... [BVA] be subject to trial de novo by the Court”). However, the fact that the BVA is an appellate tribunal which may also be authorized to develop and consider certain new evidence does not mean that it is free to operate beyond the bounds of the statutes, regulations, and case law which govern the development of evidence and the adjudication of claims. The BVA decision on appeal must be set aside since the decision, at least in part, rests upon a medical opinion procured by a process which violates both the express holding of Thurber, supra, and the" }, { "docid": "1088083", "title": "", "text": "fact; if there is a ‘plausible’ basis in the record for the factual determinations of the BVA, even if this Court might not have reached the same factual determinations, we cannot overturn them. Gilbert, 1 Vet.App. at 53. In remanding appellant’s case to the BVA for further development and readjudication of the issue of whether appellant’s psychiatric disorder was aggravated by service, this Court noted in its August 1992 decision that the BVA had failed to provide adequate reasons or bases for its decision: Pursuant to 38 U.S.C.[ ] § 7104(d) ..., a BVA decision must contain a “written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions.” See Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). Especially where medical records have been lost or destroyed, “the BVA’s obligation to explain its findings and conclusions ... is heightened.” O’Hare v. Derwinski 1 Vet.App. 365, 367; Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991). The BVA must also assess the credibility of and weight to be given to an appellant’s own testimony; it is not enough to simply “state[ ] that it ha[s] ‘considered’ it”, Ashmore v. Derwinski, 1 Vet.App. 580, 582 (1991), nor may the Board use its own “unsubstantiated medical conclusions”. Colvin, 1 Vet.App. at 175. R. at 651. While the Board is not required to accept the medical authority proffered by a claimant in support of a claim, it may not refute such expert medical conclusions merely with its own unsubstantiated medical conclusions. Colvin, supra; see also Cosman v. Principi, 3 Vet.App. 503, 506 (1992); Hatlestad v. Derwinski, 3 Vet.App. 213, 217; Budnik v. Derwinski, 3 Vet.App. 185, 187 (1992); Quarles v. Derwinski, 3 Vet.App. 129, 139 (1992); Tobin v. Derwinski, 2 Vet.App. 34, 38-39 (1991). In Colvin, the Court discussed at length the requirement that the Board provide independent medical bases for its findings: BVA panels may consider only independent medical evidence to support their findings. If the medical evidence of record is insufficient, or, in the opinion of the BVA, of doubtful weight or credibility, the BVA is" }, { "docid": "22184111", "title": "", "text": "such BVA adjudication would be prejudicial to his or her interests.” Curry v. Brown, 7 Vet.App. 59, 67 (1994) (citing Austin v. Brown, 6 Vet.App. 547, 551 (1994) (BVA decision must be set aside where, at least in part, “it rests upon a medical opinion procured by a process which violates both the express holding of Thurber [v. Brown, infra ], and the fair process principle underlying Thurber”); Thurber, 5 Vet.App. at 126 (before BVA relies on any evidence developed or obtained by it subsequent to issuance of most recent SOC or SSOC, BVA must provide claimant with reasonable notice of such evidence and of reliance proposed to be placed on it and reasonable opportunity for claimant to respond to it)). “Such a procedure would ensure that the Board decision avoids the error cautioned against in Bernard, supra.” Curry, 7 Vet.App. at 67. Accordingly, the Court notes that the appellant could expressly waive such due-process rights to permit initial BVA adjudication if he wishes to do so. See ibid. Alternatively, the BVA decision should explain why there would be no prejudice to the appellant for the BVA to adjudicate the claim on the merits without first remanding the matter to the RO. IV. Conclusion Upon consideration of the record and the pleadings of the parties, the Court dismisses the CUE claims for lack of jurisdiction. As to the May 1993 BVA decision regarding the disability-compensation claims, with one exception noted below, the appellant has not demonstrated that the BVA committed error — in its findings of fact, conclusions of law, articulation of reasons or bases, or consideration of the benefit-of-the-doubt rule — that would warrant remand or reversal under 38 U.S.C. §§ 5107(b), 5108, 7104(b), (d)(1), 7252, and 7261 and the analysis in Gilbert, supra. Accordingly, the Court affirms that decision in all respects, except that it vacates that decision to the extent that an examination is required for the ulcer and anxiety conditions and remands that matter for expeditious treatment consistent with this opinion and in accordance with the Veterans’ Benefits Improvements Act of 1994 (VBIA), Pub.L. No. 103-46," }, { "docid": "23312963", "title": "", "text": "of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation”); 38 U.S.C. § 7109 (empowers the Board to “secure an advisory medical opinion”); 38 U.S.C. § 7110 (“A claimant may request a hearing before a traveling section of the Board”); 38 U.S.C. § 7261(c) (providing that “in no event shall findings of fact made by the ... [BVA] be subject to trial de novo by the Court”). However, the fact that the BVA is an appellate tribunal which may also be authorized to develop and consider certain new evidence does not mean that it is free to operate beyond the bounds of the statutes, regulations, and case law which govern the development of evidence and the adjudication of claims. The BVA decision on appeal must be set aside since the decision, at least in part, rests upon a medical opinion procured by a process which violates both the express holding of Thurber, supra, and the fair process principle underlying Thurber. See 38 U.S.C. § 7261(a)(3)(A), (a)(3)(D). i. Express Holding The Court’s decision in Thurber established the following requirement: ... before the BVA relies, in rendering a decision on a claim, on any evidence developed or obtained by it subsequent to the issuance of the most recent SOC or SSOC with respect to such claim, the BVA must provide a claimant with reasonable notice of such evidence ... and a reasonable opportunity for the claimant to respond to it. Thurber, 5 Vet.App. at 126 (emphasis added). A BVA decision which relies upon a BVA medical adviser’s opinion obtained by a process that does not ensure Thurber-type rebuttal violates the holding of Thurber. Thurber held that the BVA must afford “a reasonable opportunity for the claimant to respond to [evidence developed or obtained by the BVA].” Thurber, 5 Vet.App. at 126. The response to which the claimant was entitled, as contemplated by Thurber, was not limited to argument or comment, but also included the claimant’s right to submit additional evidence. Here, contrary" }, { "docid": "22212635", "title": "", "text": "Court, in Colvin, 1 Vet.App. at 175, held, as relevant to this issue, that BVA panels may consider only independent medical evidence to support their findings. If the medical evidence of record is insufficient, or, in the opinion of the BVA, of doubtful weight or credibility, the BVA is always free to supplement the record by ... citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See [38 U.S.C.A. § 7109 (West 1991)]; Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). (Emphasis added.) Subsequent to the Court’s decision in Colvin and the issuance of the BVA’s decision here on appeal, as indicated in part I., supra, the Court held that, prospectively, if the BVA relies on a portion of a medical treatise in arriving at its decision, the BVA must quote the relevant portions upon which it relies, and that “such quotations should be of sufficient length so that their context (both within the treatise in question and within the body of relevant literature) is able to be determined.” Hatlestad, 3 Vet.App. at 217. Under present law, however, if the BVA so relies on a treatise, it is not required, prior to issuing its decision, to provide appellant either a copy of the part of the treatise relied upon or an opportunity to respond. Although Colvin and Hatlestad, supra, may have anticipated that such procedural rights would be afforded a claimant when medical treatise evidence was directly or indirectly made a part of the record before the Board, such issues were not specifically presented and thus those opinions did not address these process questions directly. IV. Rights to Notice and Opportunity to be Heard A. Constitutional Considerations While it is true that the case on appeal involves a claim for a benefit rather than a termination of a benefit, certain due process principles relating to the latter are worth noting. The due process clause of the Fifth Amendment of the United States Constitution requires that when an individual is to be deprived of a property interest as a result of federal government action, the aggrieved party" }, { "docid": "23312961", "title": "", "text": "advisory medical opinions at the request of the Chairman of the Board.... In rebuttal, it has been contended that the reference in § 7109(a) to expert medical opinion available within the VA authorizes the BVA to utilize such opinion. Since the Court is deciding this case on the grounds stated below, it does not reach the issue of whether § 7109(a) or any other statutory authority authorizes the promulgation of a regulation or other mechanism pursuant to which the BVA may obtain an opinion from the VHA, the AFIP, or its own medical adviser. B. Compliance with Thurber As a preliminary matter, the Court notes a line of Court precedent, Colvin v. Derwinski, 1 Vet.App. 171 (1991), Hatlestad v. Derwinski, 3 Vet.App. 213 (1992), supplemented sub nom. Hatlestad v. Brown, 5 Vet.App. 524 (1993), and Thurber, supra, which has sanctioned, under certain circumstances, BVA ev-identiary development. The Court in Colvin, 1 Vet.App. at 175, stated: BVA panels may consider only independent medical evidence to support their findings. If the medical evidence of record is insufficient, or, in the opinion of the BVA, of doubtful weight or credibility, the BVA is always free to supplement the record by seeking an advisory medical opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. (Citations omitted.) In Hatlestad, 3 Vet.App. at 217, the Court “amplified] the requirement set forth in Colvin,” and held that when utilizing medical treatises, “the Board should ... include in its decisions quotations from [them] ... of sufficient length so that their context ... is able to be determined.” Finally, the Court’s holding in Thurber, 5 Vet.App. at 126, applies to “any evidence developed or obtained by [the BVA] subsequent to the issuance of the most recent [Statement of the Case (SOC) ] or [Supplemental Statement of the Case (SSOC) Evidentiary development by the BVA is consistent with statutory authority also suggestive of a BVA fact-finding role. See, e.g., 38 U.S.C. § 7104(a) (“Board shall decide [an] ... appeal only after affording the claimant an opportunity for a hearing. Decisions" }, { "docid": "1148407", "title": "", "text": "the appellant. On May 14, 1993, two months after the BVA decision, the Court decided Thurber v. Brown, 5 Vet.App. 119 (1993). In that case, the Court held that before the BVA relies, in rendering a decision on a claim, on any evidence developed or obtained by it subsequent to the issuance of the most recent [Statement of the Case] or [Supplemental Statement of the Case] with respect to such claim, the BVA must provide a claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it, and a reasonable opportunity for the claimant to respond to it. Id. at 126. On June 11, 1993, the appellant filed a Notice of Appeal to this Court, and on June 20, 1994, the appellant filed his brief. On July 7, 1994, the Court decided Austin v. Brown, 6 Vet.App. 547 (1994). In that case, the Court held that Thurber held that the BVA must afford “a reasonable opportunity for the claimant to respond to [evidence developed or obtained by the BVA].” Thurber, 5 Vet.App. at 126. The response to which the claimant was entitled, as contemplated by Thurber, was not limited to argument or comment, but also included the claimant’s right to submit additional evidence. Id. at 551. On September 26, 1994, the parties filed a Joint Motion for Remand so that the Board might comply with the newly issued cases of Austin and Thurber, supra. In the joint motion, the parties stated: In the instant case, the BVA relied, in its decision, on the opinion of a VA Medical Advisor, obtained subsequent to the most recent SSOC, without providing to Appellant adequate notice or a “reasonable opportunity” to respond, as required. It is noted, however, that its decision preceded Austin and Thurber as well. Thus, in light of this Court’s recent decision in Austin, supra, a remand is required in order to allow Appellant an opportunity to submit additional evidence in response to the medical opinion of Dr. Anderson. If deemed to be appropriate, the Board should secure a medical examination. See EF v. Derwinski," }, { "docid": "16947260", "title": "", "text": "applying de novo review under Caluza/Collette step three, there is clear and convincing evidence of nonincurrenee during service so as to rebut Caluza/Collette steps one and two. Second, in light of the Court’s conclusion in Libertine and the absence of any medical evidence linking the “anorexia” — or any other gastrointestinal condition asserted by the appellant to have developed in service — to any of his present gastrointestinal conditions, see Libertine, 9 Vet.App. at 524-25, even if we were to assume an error in the Board’s apparent concession that steps one and two of Caluza /Collette had been satisfied (without expressly discussing the evidence in terms of those two steps) so as to proceed to an analysis under step three of (Jaluza/Col-lette, such error would have been nonprejudi-eial to the appellant. Where an appellant has not been harmed by an error in a Board determination, the error is not prejudicial. See 38 U.S.C. § 7261(b) (“Court shall take due account of the rule of prejudicial error”); Edenfield v. Brown, 8 Vet.App. 384, 390-91 (1995) (en banc). B. “Fair Process” Issues The appellant argues that, on remand, he was not informed of his right to respond to Dr. Hailstone’s report or specifically to submit additional evidence in response thereto. 1. Notice of Right to Respond to Dr. Hailstone’s Report. In Thurber, the Court held: [B]efore the BVA relies, in rendering a decision on a claim, on any evidence developed or obtained by it subsequent to the issuance of the most recent [SOC] or [SSOC] with respect to such claim, the BVA must provide a claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it and a reasonable opportunity for the claimant to respond to it. If, in the course of developing or obtaining or attempting to so develop or obtain such evidence, the BVA becomes aware of any evidence favorable to the claimant, it shall provide the claimant with reasonable notice of and a reasonable opportunity to respond to the favorable evidence, and shall in its decision provide reasons or bases for its findings" }, { "docid": "11950864", "title": "", "text": "claim, the BVA must provide a claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it and a reasonable opportunity for the claimant to respond to it. If, in the course of developing or obtaining or attempting to so develop or obtain such evidence, the BVA becomes aware of any evidence favorable to the claimant, it shall provide the claimant with reasonable notice of and a reasonable opportunity to respond to the favorable evidence, and shall in its decision provide reasons or bases for its findings with respect to that evidence. Thurber, 5 Vet.App. at 126. In the present case, the record contains no evidence that the Board provided the appellant with notice of its intent to rely upon the quoted excerpt from MeeRITt’s Textbook of NEUROLOGY. The Board’s material reliance in its decision upon a medical treatise to which it had not given the appellant an opportunity to respond appears to have violated, in a way that would generally be considered prejudicial, the procedural requirements set forth in Thurber. It also appears to have violated Hatlestad v. Derwinski, 3 Vet.App. 213, 217 (1992), in not providing the context for the quotation. The Court holds, however, that, because the appellant failed to submit a well-grounded claim and thus was not entitled to receive an adjudication of his claim on the merits, any Board Thurber or Hatlestad violations were not prejudicial to him. See 38 U.S.C. § 7261(b); see also White (Frank E.) v. Brown, 6 Vet.App. 247, 252 (1994) (where claimant fails to submit new and material evidence to reopen claim under 38 U.S.C. § 5108, Board’s Thurber error is nonprejudicial and does not require remand); cf. Yabut, 6 Vet.App. at 85 (“failure of the BVA to provide appellant with [Tter&er-required] notice and an opportunity to respond to the medical treatises superfluously cited in its decision constitutes [nonprejudicial] error”). The same conclusion obtains as to any deficiencies in the Board’s statement of reasons or bases, including consideration of the benefit-of-the-doubt rule. See Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991); see also Williams" }, { "docid": "10150394", "title": "", "text": "applicable legislation.” In its decision on remand, the BVA cited medical authorities for the proposition that “although nearly all astigmatism is congenital (where heredity is the only known factor), it may also occur as a residual of trauma and scarring of the cornea, or even from the weight of the upper eyelid resting upon the eyeball.... Thus it is possible, although not conclusively shown, that the pre-service trauma played a role in the development of the veteran’s myopic astigmatism.” Browder, BVA 91-16601, at 6. The Board is required to provide a written statement of the “reasons or bases” for its “findings and conclusions on all material issues of fact and law presented on the record.” 38 U.S.C.A. § 7104(d)(1); Sammarco v. Derwinski, 1 Vet.App. 111, 112-14 (1991); Gilbert, 1 Vet.App. at 56-57. The statement must be adequate to enable a claimant to understand the basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C.A. § 7104(d)(1); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Masors v. Derwinski, 2 Vet.App. 181, 188 (1992); Gilbert, 1 Vet.App. at 57. After conceding that not all astigmatism is developmental, the Board did not explain how it concluded that section 3.303(c) should apply in this case. The Board’s conclusory rationale that “nearly all astigmatism is congenital,” is not sufficient to satisfy the requirement of 38 U.S.C.A. § 7104(d)(1) that the BVA provide a written statement of “reasons or bases” to support its findings and conclusions. See Sammarco, 1 Vet.App. at 114; Gilbert, 1 Vet.App. at 56-57; see also Thurber v. Brown, 5 Vet.App. 119 (1993); Hatlestad v. Derwinski, 3 Vet.App. 213, 217 (1992); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). As in its prior decision, the BVA, in its May 1991 decision, made “no attempt to clarify or discuss how the pre-service traumatic injury or the astigmatism relate to appellant’s vision problem or why it concluded that appellant’s right eye was not injured during service.” Browder, 1 Vet.App. at 208. The Board simply stated that on the basis of the available records ... it cannot be stated" }, { "docid": "10210631", "title": "", "text": "for the claimant to prevail; that is, “the preponderance of the evidence must be against the claim for benefits to be denied”. Gilbert, supra. In light of the “significant evidence in support of” the claim, the Board on remand will be required to discuss the applicability of the benefit-of-the-doubt rule as it pertains to both the issue of the date of onset of PTB and the issue of whether the presumption of PTB, if applicable, is adequately rebutted. See Williams, supra. III. Conclusion Based upon the foregoing opinion, the Court vacates the February 21, 1991, BVA decision and remands the matter to the Board for prompt readjudication, consistent with this opinion, on the basis of all evidence of record and all applicable provisions of law and regulation. See 38 U.S.C.A. §§ 7104(a), (d)(1), 5107(b) (West 1991); Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). On remand, the Board, therefore, must consider the applicability of the presumption of service connection in light of the evidence of record after that evidence is fully developed. If on remand the Board concludes that the presumption of service connection has been rebutted under section 1113(a), it must provide an adequate statement of the reasons or bases for such a conclusion, including discussion of the applicable statutory and regulatory provisions and citation to medical evidence of record or adequate quotation of recognized medical treatises to support any medical conclusions. See Hatlestad II, supra; Colvin, supra. Furthermore, if the Board concludes that the presumption of service connection is rebutted, it must still adjudicate the veteran’s claim for direct service connection in light of the medical evidence tending to show that his PTB was present at separation from service. “On remand, the appellant will be free to submit additional evidence and argument”. See Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). A final decision by the Board fol lowing the remand herein ordered will constitute a new decision which, if adverse, may be appealed to this Court only upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date" }, { "docid": "1132754", "title": "", "text": "Accordingly, the letter of Dr. Allison is not properly before this Court and will not be considered. E. Failure to Give Notice Regarding Use of Medical Treatise In its January 3, 1992, decision, the Board cites to S. Turek, ORTHOPEDICS: PRINCIPLES and TheiR Applications (4th ed. 1984). The Boat'd relied upon this treatise to refute the appellant’s contentions; however, it offered him no notice of its use of an opportunity to respond to it. This Court has held that if the Board relies upon evidence developed after the most recent Statement of the Case or Supplemental Statement of the Case, it must provide a claimant with reasonable notice of the evidence, the reliance to be placed upon that evidence, and a reasonable opportunity to respond to the evidence. Thurber v. Brown, 5 Vet.App. 119, 126 (1993). Since the Board provided the appellant in this case with no notice of the use of the treatise, the reliance to be placed upon it, or a reasonable opportunity to respond to it, the Board’s determination is vacated, and the matter is remanded for proceedings consistent with this opinion. III. Conclusion Having reviewed the record, the appellant’s pleadings, and the Secretary’s brief, the Court VACATES the January 1992 decision of the Board of Veterans’ appeals, and REMANDS this case for fulfillment of the duty to assist. KRAMER, Judge, dissenting: There are three bases for the severance of service connection: (1) clear and unmistakable error (CUE) in a prior determination, pursuant to 38 C.P.R. § 3.105(a), (d) (1993); (2) change in diagnosis in light of all accumulated evidence indicating that the diagnosis on which service connection was predicated is clearly erroneous, pursuant to 38 C.F.R. § 3.105(d); and (3) fraud, pursuant to 38 C.F.R. § 3.957 (1993). In its decision severing service connection, the Board of Veterans’ Appeals (BVA) concluded that the October 1986 Regional Office (RO) determination granting service connection was predicated upon CUE. In reaching that conclusion, the BVA extensively reweighed facts without analyzing the prior determination and simply concluded that “[t]he record is clear that veteran’s current back problems began with his" }, { "docid": "11968165", "title": "", "text": "to deal with abstract concepts divorced from such facts. C. Nonprejudicial error also results where the VA has erroneously found a claim well grounded but then fails to comply with the fair process requirements enunciated in Thurber v. Brown, 5 Vet.App. 119, 126 (1993). In Thurber, the Court held: [B]efore the BVA relies, in rendering a decision on a claim, on any evidence developed or obtained by it subsequent to the issuance of the most recent SOC or [Supplemental] SOC with respect to such claim, the BVA must provide a claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it, and a reasonable opportunity for the claimant to respond to it. If, in the course of developing or obtaining or attempting to so develop or obtain such evidence, the BVA becomes aware of any evidence favorable to the claimant, it shall provide the claimant with the reasonable notice of and a reasonable opportunity to respond to the favorable evidence, and shall in its decision provide reasons or bases for its findings with respect to that evidence. Ibid. In the present case, it appears that the Board did not provide the appellant with notice of its intent to rely upon the HARRISON medical treatise. The Board’s material reliance in its decision upon a medical treatise to which it had not given the appellant an opportunity to respond violated, in a way that would generally be considered prejudicial, the procedural requirements set forth in Thurber. The Court holds, however, that, because the appellant failed to submit a well-grounded claim, the Board’s Thurber violation was not, ipso facto, prejudicial. See 38 U.S.C. § 7261(b); see also White (Frank) v. Brown, 6 Vet.App. 247, 252 (1994) (where claimant fails to submit new and material evidence to reopen claim under 38 U.S.C. § 5108, Board’s Thurber error is harmless and does not require remand); Yabut, 6 Vet. App. at 85 (“failure of the BVA to provide appellant with [!Z7mr&er-required] notice and an opportunity to respond to the medical treatises superfluously cited in its decision constitutes harmless error”). III." }, { "docid": "1118916", "title": "", "text": "decision which reflects the exercise of medical judgment described by the BVA As this Court said in Colvin: BVA panels may consider only independent medical evidence to support their findings. If the medical evidence of record is insufficient, or, in the opinion of the BVA, of doubtful weight or credibility, the BVA is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See 38 U.S.C. § [7109 (1991) ]; Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). This procedure ensures that all medical evidence contrary to the veteran’s claim will be made known to him and be a part of the record before this Court. Colvin, 1 Vet.App. at 175. Here, the BVA merely relied on Infectious Diseases and Medical Microbiology, a medical treatise, in concluding that [t]he Philippines, the appellant’s residence is a tropical region where sanitation is generally inadequate. That being the case, we conclude that the presumption of service connection is rebutted under 38 C.F.R. 3.307(d), since the evidence shows that the intestinal parasitic disease is endemic to his place of residence, and more probably represents an incurrent disease rather than a disease related to military service or prisoner-of-war internment. Yabut, BVA 92-18063, at 16. In Thurber v. Brown, 5 Vet.App. 119 (1993), the Court held that where the BVA relies, in rendering a decision, upon any evidence, such as a medical treatise, developed or obtained by it after issuing of the most recent SOC or Supplemental SOC with respect to such claim, the BVA must provide the veteran with reasonable notice of the evidence and of the reliance proposed to be placed on it, as well as a reasonable opportunity for the veteran to respond to that evidence. Id. at 126. In this instance, there is no indication that the BVA notified appellant of its intended use of the medical treatise or offered him a reasonable opportunity to respond to same. Furthermore, this Court, as noted earlier, is required by statute to “take due account of" }, { "docid": "11950863", "title": "", "text": "him the duty to assist (see Tirpak, supra) or to carry his claims to full adjudication (see Heuer, Magana, Grottveit, and Espiritu, all supra). Although the BVA erred in finding that the claims for service connection for Huntington’s chorea and vascular headaches were well grounded, the error did not result in prejudice to the appellant. See 38 U.S.C. § 7261(b) (Court shall take due account of rule of prejudicial error); Edenfield, 8 Vet. App. at 390. The outcome, disallowance of the claim, would be the same whether VA had treated the claim as not well grounded or, as in this case, adjudicated it on the merits. The appropriate remedy is therefore to affirm the BVA decision as to the disallowance of these claims. Id. at 388-89. B. Asserted Adjudication Errors In Thurber, the Court held: [Bjefore the BVA relies, in rendering a decision on a claim, on any evidence developed or obtained by it subsequent to the issuance of the most recent [Statement of the Case (SOC) ] or [Supplemental SOC] with respect to such claim, the BVA must provide a claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it and a reasonable opportunity for the claimant to respond to it. If, in the course of developing or obtaining or attempting to so develop or obtain such evidence, the BVA becomes aware of any evidence favorable to the claimant, it shall provide the claimant with reasonable notice of and a reasonable opportunity to respond to the favorable evidence, and shall in its decision provide reasons or bases for its findings with respect to that evidence. Thurber, 5 Vet.App. at 126. In the present case, the record contains no evidence that the Board provided the appellant with notice of its intent to rely upon the quoted excerpt from MeeRITt’s Textbook of NEUROLOGY. The Board’s material reliance in its decision upon a medical treatise to which it had not given the appellant an opportunity to respond appears to have violated, in a way that would generally be considered prejudicial, the procedural requirements set forth" }, { "docid": "11950894", "title": "", "text": "whether a disability found to be preexisting was aggravated by service is a question of fact. See Doran v. Brown, 6 Vet.App. 283, 286 (1994) (citing Green v. Derwinski, 1 Vet.App. 320, 322 (1991), and Hunt v. Derwinski, 1 Vet.App. 292, 293 (1991)). Factual determinations are reviewed under the “clearly erroneous” standard (38 U.S.C. § 7261(a)(4)): “if there is a ‘plausible’ basis in the record for the factual determinations of the BVA, ... we cannot overturn them”. Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). In Thurber v. Brown, where a claimant had not been notified that the Board would rely upon a medical treatise, the Court held: [B]efore the BVA relies, in rendering a decision on a claim, on any evidence developed or obtained by it subsequent to the issuance of the most recent [Statement of the Case (SOC) or Supplemental SOC] with respect to such claim, the BVA must provide a claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it, and a reasonable opportunity for the claimant to respond to it. Thurber v. Brown, 5 Vet.App. 119, 126 (1993). This “opportunity to respond” was subsequently interpreted to mean not only notice and an opportunity to comment but also “the claimant’s right to submit additional evidence’’ in rebuttal of a BMAO. Austin v. Brown, 6 Vet.App. 547, 551 (1994) (emphasis added); see also 38 C.F.R. §§ 20.903, 20.1304 (1994). In Austin, this Court expressly held that a BMAO is valid only if notice is given to a claimant that it will be requested and the claimant has the opportunity to present evidence in rebuttal. Id. at 551, 553. The Court in Austin also discussed whether BVA Memorandum No. 01-91-21, June 24, 1991 [hereinafter Memorandum I], was issued in compliance with 38 C.F.R. §§ 1.12 and 1.551, which provide for “general notice” through publication in the Federal Register of proposed regulatory development and for the opportunity for public participation in such development. See 38 C.F.R. §§ 1.12,1.551(a) (1994). Section 1.551 provides in pertinent part: (b) Administration and Staff office heads will develop," } ]

[ { "docid": "12834301", "title": "", "text": "all counts are for jury determination or where, as here, they are split between Judge and jury. There are a variety of ways to accomplish this, the choice of which is ordinarily for the wise judgment of the Trial Court.” For what appears to be a different view of the law, see Crooks v. United States, 9 Cir., 1972, 459 F.2d 631, in which one Judge dissented, citing the double recovery principle announced in Vickers v. Turney, supra. It must not be overlooked that with this instruction before it the jury nevertheless awarded maintenance and cure for 321 days, up to the time that Blanchard went to the hospital for his surgery, at which time Blanchard’s entitlement to maintenance and cure was a subject upon which, from the evidence, reasonable men could very easily differ. In response to an interrogatory, the jury found that appellee had arbitrarily and unreasonably failed to pay maintenance and cure. This further indicates that the instruction just discussed did not defeat Blanchard’s recovery on that subject. In further response to the interrogatory, however, the jury found that Blanchard was entitled to no damages for this arbitrary failure. Of this the appellant now complains, but when the verdict was returned in open court he made no motion that the jury be returned to further consider the matter, F.R.Civ.P. 49(a) or (b) or both, and the jury was forthwith dismissed with no comment, suggestion, or motion from any party to the litigation. Failure to give maintenance and cure may give rise to a claim for damages for the suffering, for the physical handicap, which follows, and reasonable attorney fees may be allowed where required to obtain recovery from a callous, recalcitrant vessel owner, Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962). The instructions of the trial court on this point were not objected to and there was no proof as to reasonable attorney fees, so we can only conclude that the jury found no reason to award damages in this regard. The judgment of the District Court is Affirmed." } ]

[ { "docid": "8778189", "title": "", "text": "for the suffering and for the physical handicap which follows . . the recovery may also include “necessary expenses.” Cortes v. Baltimore Insular Line, 287 U.S. 367, 371, 53 S.Ct. 173, 77 L.Ed. 368. 369 U.S. at 530, 82 S.Ct. at 999. This might lead one to conclude that the award of attorney’s fees was compensatory as a “necessary expense,” rather than based on a punitive damage theory. However, it then becomes difficult to understand the Court’s emphasis on the malice of the shipowner. His refusal to supply maintenance and cure was termed “callous”. Id. Indeed, his “default was willful and persistent.” Id. at 531, 82 S.Ct. 997. Moreover, the Court took pains to point out that the obligation of the shipowner to provide maintenance and cure was not contractual. It quoted with approval, 369 U.S. at 532-33, 82 S.Ct. 997, Mr. Justice Cardozo’s opinion in Cortes v. Baltimore Insular Line, supra, 287 U.S. at 371, 53 S.Ct. 173, 174, where, in characteristic language, he explained the nature of the employer’s duty to provide maintenance and cure: The duty to make such provision is imposed by the law itself as one annexed to the employment. Contractual it is in the sense that it has its source in a relation which is contractual in origin, but given the relation, no agreement is competent to abrogate the incident. (Citation omitted). It is well understood that punitive damages are not recoverable in an action for breach of contract. E. g., A.L.I., Restatement of Contracts § 342 (1932); C. McCormick, Damages § 81 (1935); J. Calamari & J. Perillo, Contracts § 204 (1970). We conclude therefore that the majority in Atkinson, by eschewing a contractual basis for the employer’s maintenance and cure obligation and by stressing the willfulness of the shipowner’s conduct, was in fact awarding counsel fees as punitive damages. Unlike the majority opinion, Mr. Justice Stewart’s dissent is not ambiguous on this point. He found no authority for holding that a seaman could recover counsel fees as compensatory damages. Rather, the dissent found that: [I]f the shipowner’s refusal to pay maintenance stemmed" }, { "docid": "19854367", "title": "", "text": "on a failure to pay only $9,000 would certainly concern us. We are, however, required by the nature of this case to consider Taylor’s conduct prior to the day that Gaspard terminated his employment. Having done so, we find that the evidence adduced at trial does support the jury verdict. The duty to provide maintenance and cure embraces not only the obligation to provide a subsistence allowance and to pay for medical expenses actually incurred by the seaman, but to take all reasonable steps to ensure that the seaman, when he is injured or becomes ill, receives proper care and treatment. See generally 2 Norris, The Law of Seamen (3rd ed. 1970 & Supp.) § 583 et seq., and cases cited therein. If an unreasonable failure to provide maintenance and cure aggravates the seaman’s condition, the shipowner is liable not only for the increased medical expenses and maintenance that may become necessary, but also for the full tort damages that result. Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368 (1932); see Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); Blanchard v. Cheramie, 485 F.2d 328 (5th Cir. 1973). If the shipowner, in failing to provide maintenance and cure, has been callous and recalcitrant, Vaughan, 82 U.S. at 530-31, 83 S.Ct. at 999, or arbitrary or capricious, see Richard v. Bauer Dredging Co., 433 F.2d 955 (5th Cir. 1970), reasonable attorney’s fees may also be recovered. Thus, as Jus tice Cardozo noted in Cortes, a seaman whose injuries are aggravated by a negligent failure to provide appropriate care on board ship has overlapping causes of action. He can recover full tort damages under either a count for negligence under the Jones Act or a count for breach of the maritime duty of maintenance and cure. 287 U.S. at 374-75, 53 S.Ct. at 175. Our review of the record convinces us that the jury could reasonably have concluded that Gaspard, on a number of occasions, suffered pain, nausea, and other symptoms of decompression sickness, reported these symptoms to Taylor, yet was" }, { "docid": "11917023", "title": "", "text": "Durham at no expense to Jordan on October 24th as he had already made plans to do, (b) in not fully explaining to Jordan the nature of his right to maintenance and cure, and (c) in not immediately undertaking to pay Jordan maintenance from the time his employment terminated at Norfolk Dredging Company. For a number of reasons which need not be enumerated here, this court has grave doubts that there was any callous behavior whatsoever on the part of U. S. F. & G. or Norfolk Dredging Company toward libellant in the case at bar. But there is no doubt but that Haake’s decision resulted in Jordan being required to employ attorneys to bring this action to require the respondent to pay for his maintenance and cure while incapacitated as a result of his injury. And, as this court reads the Supreme Court's opinion in Vaughan v. Atkinson, supra, whether there was callous behavior or not makes no difference in the determination of whether counsel fees should be awarded to a seaman who is forced to bring suit to collect his maintenance and cure; and, of course, it is in any event immaterial with respect to his right to maintenance and cure. For the Supreme Court in Vaughan in awarding counsel fees as “damages” or “necessary expenses” expressly rejected an award of counsel fees based on unconscionable behavior by the shipowner and likewise rejected, as Mr. Justice Stewart’s dissent points out, the award of exemplary damages for wanton and intentional disregard of the seaman’s legal rights. The language of the majority opinion reads as follows (369 U.S. at 530, 82 S.Ct. at 999, 8 L.Ed.2d 88): “Our question concerns damages. Counsel fees were allowed in The Apollon, 9 Wheat. 362, 379 [6 L.Ed. 111], an admiralty suit where one party was put to expense in recovering demurrage of a vessel wrongfully seized. While failure to give maintenance and cure may give rise to a claim for damages for the suffering and for the physical handicap which follows (The Iroquois, 194 U.S. 240 [24 S.Ct. 640, 48 L.Ed. 955]), the" }, { "docid": "11917024", "title": "", "text": "forced to bring suit to collect his maintenance and cure; and, of course, it is in any event immaterial with respect to his right to maintenance and cure. For the Supreme Court in Vaughan in awarding counsel fees as “damages” or “necessary expenses” expressly rejected an award of counsel fees based on unconscionable behavior by the shipowner and likewise rejected, as Mr. Justice Stewart’s dissent points out, the award of exemplary damages for wanton and intentional disregard of the seaman’s legal rights. The language of the majority opinion reads as follows (369 U.S. at 530, 82 S.Ct. at 999, 8 L.Ed.2d 88): “Our question concerns damages. Counsel fees were allowed in The Apollon, 9 Wheat. 362, 379 [6 L.Ed. 111], an admiralty suit where one party was put to expense in recovering demurrage of a vessel wrongfully seized. While failure to give maintenance and cure may give rise to a claim for damages for the suffering and for the physical handicap which follows (The Iroquois, 194 U.S. 240 [24 S.Ct. 640, 48 L.Ed. 955]), the recovery may also include ‘necessary expenses.’ Cortes v. Baltimore Insular Line, 287 U.S. 367, 371 [53 S.Ct. 173, 77 L.Ed. 368].” Apparently the Supreme Court intended to put shipowners on notice that if, in any case, they saw fit to contest a claim for maintenance and cure, regardless of the reasonableness of the grounds upon which the refusal to pay was based, and if it was ultimately determined on the merits that maintenance and cure was indeed owing, then counsel fees should be paid as compensation for “necessary expenses” incurred. In other words, attorneys’ fees have been made a routine element of damages to be paid any seaman who wins a contested maintenance and cure suit. Apparently this added and unusual onus is put on the shipowner’s shoulders in maintenance and cure actions in an attempt to equalize the always poor and usually ignorant seaman with the powerful, wealthy a,nd well informed shipping company which is better able to evaluate the legal merits of a claim and to pay the, to them, relatively small amounts" }, { "docid": "23362281", "title": "", "text": "cure claim was tried to the jury, the factual question of entitlement to pre-judgment interest was not submitted to the jury. Consequently, the district court did not have authority to award such interest, and its award must therefore be vacated. We must also modify the award of maintenance so that the owner is not held liable to pay maintenance for the period during which Morales remained aboard the vessel and was furnished board, July 28 until August 10, 1983. For these reasons, we ORDER Garijak to pay maintenance of $15 per day from August 10, 1983 and the reasonable medical expenses incurred by Morales for the treatment of his broken wrist until Morales has reached maximum cure, VACATE the awards of attorney’s fees and pre-judgment interest, and REMAND for determination of compensatory damages. . Gaspard v. Taylor Diving & Salvage Co., 649 F.2d 372, 374 n. 3 (5th Cir.1981), cert, denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982). . Id. at 375. . McWilliams v. Texaco, Inc., 781 F.2d 514, 518— 20 (5th Cir.1986). . Vaughan v. Atkinson, 369 U.S. 527, 530, 82 S.Ct. 997, 999, 8 L.Ed.2d 88 (1962); Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 371, 53 S.Ct. 173, 174, 77 L.Ed. 368 (1932); Gaspard, 649 F.2d at 375. . McWilliams, 781 F.2d at 519; Gaspard, 649 F.2d at 375. . Ober v. Penrod Drilling Co., 726 F.2d 1035, 1037 n. 4 (5th Cir.1984) (per curiam). . Gaspard, 649 F.2d at 375 n. 4. . 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962). . Harper v. Zapata Off-Shore Co., 563 F.Supp. 576, 580-81 (E.D.La.1983), rev’d on other grounds, 741 F.2d 87 (5th Cir.1984). . Vaughan, 369 U.S. at 530, 82 S.Ct. at 999; Cortes, 287 U.S. at 371, 53 S.Ct. at 174; Gaspard, 649 F.2d at 375; Kraljic v. Berman Enters., Inc., 575 F.2d 412, 413 (2d Cir.1978); Neville v. American Barge Line Co., 276 F.2d 117, 120 (3d Cir. 1960). See also G. Gilmore & C. Black, The Law of Admiralty § 6-13, at 311 (2d ed. 1975). . Restatement" }, { "docid": "23056821", "title": "", "text": "The American Rule’s failure to fully compensate an injured party is justified by the rationale that “since litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel.” Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475 (1967). The general American Rule has been reaffirmed numerous times by the Supreme Court. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Summit Valley Industries v. Local 112, United Brotherhood of Carpenters, 456 U.S. 717, 102 S.Ct. 2112, 72 L.Ed.2d 511 (1982); Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). The “bad faith” exception to the American Rule allows attorney fees in certain exceptional cases where the opposing party has acted in bad faith. The earliest Supreme Court case cited for this exception is Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962). Vaughan was an admiralty suit by a seaman against shipowners for damages for failure to pay maintenance and cure while the seaman was recovering from an illness contracted aboard ship. Under admiralty law, the shipowners had a duty to provide the seaman with maintenance and cure while convalescing, and if they failed to provide maintenance and cure the shipowners were liable for consequential damages arising from their failure to pay. The Supreme Court allowed the seaman attorney fees incurred in his suit to recover maintenance as an item of damages for the shipowners’ failure to pay maintenance. The Court reasoned that the shipowners: were callous in their attitude, making no investigation of [the seaman’s] claim and by their silence neither admitting nor denying it. As a result of that recalcitrance, [the seaman] was forced to hire a lawyer and go to court to get what was plainly owed him under laws that are centuries old. The default was" }, { "docid": "23286114", "title": "", "text": "Mr. Justice Stewart, dissenting primarily on the question of the extent of a seaman’s recovery for maintenance and cure but seemingly in agreement with the majority’s fundamental premise, stated: \"[I]f the shipowner’s refusal to pay maintenance stemmed from a wanton and intentional disregard of the legal rights of the seaman, the latter would be entitled to exemplary damages in accord with traditional concepts of the law of damages. McCormick, Damages, § 79. While the amount so awarded would be in the discretion of the fact finder, and would not necessarily be measured by the amount of counsel fees, indirect compensation for such expenditures might thus be made.” Id. at 540, 82 S.Ct. at 1004. Such awards or the right thereto have been upheld in the progeny of Vaughan. See, e. g., Solet v. M/V Capt. H. V. Dufrene, 303 F.Supp. 980, 989 (E.D.La.1969); Roberson v. S/S American Builder, 265 F.Supp. 794, 800 (E.D.Va.1967); Stewart v. S.S. Richmond, 214 F.Supp. 135, 136-137 (E.D.La.1963). The answer to Sea Coast’s further argument that the right to maintenance is essentially a contractual right and that generally punitive damages are not awarded for the breach of such rights is also found in Vaughan, supra 369 U.S. at 532-533, 82 S.Ct. at 1000-1001, where the Court stated: “Maintenance and cure differs from rights normally classified as contractual. As Mr. Justice Cardozo said in Cortes v. Baltimore Insular Line, supra, 371 [of 287 U.S. 367, 174 of 53 S.Ct. 173, 77 L.Ed. 368], the duty to provide maintenance and cure ‘is imposed by the law itself as one annexed to the employment. . . . Contractual it is in the sense that it has its source in a relation which is contractual in origin, but given the relation, no agreement is competent to abrogate the incident.’ [Footnote omitted.] ” Finally, defendant’s assertion that the evidence was insufficient to warrant charging the jury on punitive damages merits little discussion. In view of the defendant’s initial use of the venereal disease charge to justify withholding these payments, its refusal to pay past due unearned wages when notified that plaintiff" }, { "docid": "8778193", "title": "", "text": "two district court cases, Solet v. M/V Captain H. V. Dufrene, 303 F.Supp. 980 (E.D.La.1969) and Stewart v. S.S. Richmond, 214 F.Supp. 135 (E.D.La. 1963), which awarded a recovery for maintenance and cure plus attorney’s fees and damages not characterized in either opinion as “punitive”. In Solet the court held, “the plaintiff is entitled to recover attorney’s fees and damages for the willful failure to pay maintenance clearly due. The court will hear evidence to determine the amount of damages, if any, and a reasonable attorney’s fee.” 303 F.Supp. at 989. That the court found it necessary to consider the evidence as to the amount of damages and left open the possibility that none would be proved, strongly suggests the damages were compensatory in nature. Yet the fact that plaintiff’s entitlement was based on a “willful failure” of defendant to pay maintenance and cure would seem to indicate that the damages were punitive. The same apparently inconsistent reasoning is present in Stewart where the damages awarded for willful failure to pay maintenance and cure were limited to those flowing from that failure. See 214 F.Supp. at 137. In these two cases the district courts apparently confused two types of damages — i. e., those resulting from aggravation of the injury caused by failure to pay maintenance and cure and attorney’s fees allowable only when there has been a willful failure to make such payments. The latter type is governed by Vaughan v. Atkinson, supra. As to the former the law is clear: If the master or owner fails to provide proper care and as a result the seaman’s condition is aggravated, the shipowner is liable not only for the increased medical expensés and maintenance that may become necessary but also for resulting damages. That is to say, following such a breach of duty the seaman may recover full tort damages, including compensation for total or partial disability which, the Taylor and Warren cases held, was not recoverable in an ordinary or unaggra-vated maintenance and cure action. G. Gilmore & C. Black, Jr.,’ The Law of Admiralty 311 (2nd ed. 1975)" }, { "docid": "8778188", "title": "", "text": "for maintenance and cure plus interest. Attorney’s fees of $300 for the maintenance and cure representation were also awarded by the court, the amount having been agreed upon by the parties. In addition, the jury awarded Kraljic $3,000 in punitive damages on the maintenance and cure claim. Berman appeals solely from the award of punitive damages. I The leading case on the issue, Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), is relied upon by both parties to this appeal. In that case, Mr. Justice Douglas, writing for the majority, held that in an action for maintenance and cure the seaman is entitled not only to a recovery of his actual damages but also to an award of counsel fees where the defendant’s default is “callous” or “willful and persistent”. While the result is unambiguous the theory upon which the majority awarded counsel fees is not clearly articulated. On the one hand Justice Douglas stated, While failure to give maintenance and cure may give rise to a claim for damages for the suffering and for the physical handicap which follows . . the recovery may also include “necessary expenses.” Cortes v. Baltimore Insular Line, 287 U.S. 367, 371, 53 S.Ct. 173, 77 L.Ed. 368. 369 U.S. at 530, 82 S.Ct. at 999. This might lead one to conclude that the award of attorney’s fees was compensatory as a “necessary expense,” rather than based on a punitive damage theory. However, it then becomes difficult to understand the Court’s emphasis on the malice of the shipowner. His refusal to supply maintenance and cure was termed “callous”. Id. Indeed, his “default was willful and persistent.” Id. at 531, 82 S.Ct. 997. Moreover, the Court took pains to point out that the obligation of the shipowner to provide maintenance and cure was not contractual. It quoted with approval, 369 U.S. at 532-33, 82 S.Ct. 997, Mr. Justice Cardozo’s opinion in Cortes v. Baltimore Insular Line, supra, 287 U.S. at 371, 53 S.Ct. 173, 174, where, in characteristic language, he explained the nature of the employer’s duty to provide maintenance" }, { "docid": "18185216", "title": "", "text": "a bar to maintenance.” Nor do we think that the days spent in Leigh Memorial Hospital should be deducted from the claim for maintenance under this ruling where the bill of the private hospital is disallowed. Of course, if the shipowner had been required to provide for such cure, during which time the seaman would receive room and board at the hospital in lieu of maintenance, or if cure had been provided at a charitable institution without charge to him, it is fundamental that maintenance would cease during the period of hospitalization. And where the seaman lives at home with his parents, thereby incurring no actual expense or liability for his care and support, he is not entitled to maintenance. Johnson v. United States, 333 U.S. 46, 68 S.Ct. 391, 92 L. Ed. 468. However, in the present case, Roberson is entitled to maintenance at the rate of $8.00 per day from June 18, 1965 until March 1, 1966, at which time he reached maximum cure, together with interest at the rate of 6% per annum computed weekly, but not compounded. Perez v. Suwanee Steamship Co., (2 Cir., 1957) 239 F.2d 180; Vaughan v. Atkinson (E.D.Va., 1959) 200 F.Supp. 802, aff’d., 4 Cir., 291 F.2d 813, reversed, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88. This brings us to the final point. Has the shipowner been “callous” in its attitude in stopping maintenance payments as of June 18, 1965, when Roberson entered a private hospital to undergo an operation and, if so, to what extent should the shipowner respond in damages incurred by reason of attorney’s fees in his efforts to collect the maintenance legally due to him under the doctrine enunciated in Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88. At the outset it should be noted that there is a conflict among decisions emanating from this court. Following the reversal and remand in Vaughan, the ease again came before the court. Vaughan v. Atkinson, (E.D.Va., 1962) 206 F.Supp. 575. This court there stated that the payment of damages by way of attorney’s fees" }, { "docid": "8778199", "title": "", "text": "erred in submitting the request for punitive damages to the jury. Consequently, the judgment entering the $3,000 award of punitive damages is reversed. The case is remanded for entry of judgment in accordance with this opinion. . The reference to Mr. Justice Cardozo’s opinion in Cortes v. Baltimore Insular Line is apparently to this sentence: “If the failure to give maintenance or cure has caused or aggravated an illness, the seaman has his right of action for the injury thus done to him, the recovery in such circumstances including not only necessary expenses, but also compensation for the hurt.” Since counsel fees are nowhere mentioned in the opinion, it is probable that the expenses referred to were medical and not legal. See G. Gilmore & C. Black, Jr., The Law of Admiralty 311 (2nd ed. 1975). . As the court stated in Blanchard v. Cheramie, 485 F.2d 328, 331 (5th Cir. 1973): Failure to give maintenance and cure may give rise to a claim for damages for the suffering, for the physical handicap, which follows, and reasonable attorney fees may be allowed where required to obtain recovery from a callous, recalcitrant vessel owner. Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962). . Roberson v. S/S American Builder, 265 F.Supp. 794 (E.D.Va.1967), relied upon by ap-pellee, provides no support for his position. There it is clear that the damages for malicious behavior were measured by attorney’s fees. The court phrased the question of damages as follows: “to what extent should the shipowner respond in damages incurred by reason of attorney’s fees in [plaintiff’s] efforts to collect the maintenance legally due to him under the doctrine enunciated in Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88.” Id. at 799. From the method of computátion employed (one-third of the maintenance due during the period of defendant’s recalcitrance) it is quite clear that the court in Roberson was only awarding counsel fees. . This limitation on punitive damages is not unprecedented. C. McCormick, Damages §§ 78, 85 (1935). In Connecticut exemplary damages are limited to" }, { "docid": "18185217", "title": "", "text": "annum computed weekly, but not compounded. Perez v. Suwanee Steamship Co., (2 Cir., 1957) 239 F.2d 180; Vaughan v. Atkinson (E.D.Va., 1959) 200 F.Supp. 802, aff’d., 4 Cir., 291 F.2d 813, reversed, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88. This brings us to the final point. Has the shipowner been “callous” in its attitude in stopping maintenance payments as of June 18, 1965, when Roberson entered a private hospital to undergo an operation and, if so, to what extent should the shipowner respond in damages incurred by reason of attorney’s fees in his efforts to collect the maintenance legally due to him under the doctrine enunciated in Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88. At the outset it should be noted that there is a conflict among decisions emanating from this court. Following the reversal and remand in Vaughan, the ease again came before the court. Vaughan v. Atkinson, (E.D.Va., 1962) 206 F.Supp. 575. This court there stated that the payment of damages by way of attorney’s fees was not commanded in all cases where maintenance claims are in litigation. One year later a visiting judge held to the contrary without reference to the prior opinion. Jordan v. Norfolk Dredging Company (E.D.Va., 1963) 223 F.Supp. 79. With deference to a distinguished colleague, this court reasserts its prior position which is now supported by a long line of authorities, including Diaz v. Gulf Oil Corporation, (S.D.N.Y., 1965) 237 F.Supp. 261, 266; Stewart v. S.S. Richmond, (E.D.La., 1963) 214 F.Supp. 135; Pyles v. American Trading & Production Corporation, (S.D.Tex., 1965) 244 F.Supp. 685; Connorton v. Harbor Towing Corp., (D.Md., 1964) 237 F.Supp. 63; Diddlebock v. Alcoa Steamship Company, (E.D.Pa., 1946) 234 F.Supp. 811; and Johnson v. Mississippi Valley Barge Line Company, (3 Cir., 1964) 335 F.2d 904 (footnote 2). At least one appellate court has held in accord with the majority and has expressly disagreed with Jordan v. Norfolk Dredging Co., supra. See Roberts v. S.S. Argentina (2 Cir., 1966) 359 F.2d 430. The ultimate test is, therefore, whether the shipowner was acting in good" }, { "docid": "1788789", "title": "", "text": "is the fact that the other elements referred to in the pattern instruction for the additional pain, mental anguish, etc., suffered by reason of the failure to pay proper maintenance and cure, are not punitive in nature at all, but rather compensatory, for the actual damage sustained by the seaman by reason of the breach of the employer’s duty to furnish maintenance. In discussing the two Eastern District cases, the court in Kraljic v. Berman Enterprises, Inc., supra, at 415, described as “apparently inconsistent reasoning” the “willful failure” prerequisite for awarding compensatory damages. More recently, the Fifth Circuit held that the pattern instruction approach with respect to the award of such damages is erroneous: If an unreasonable failure to provide maintenance and cure aggravates the seaman’s condition, the shipowner is liable not only for the increased medical expenses and maintenance that may be come necessary, but also for the full tort damages that result. Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368 (1932); see Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); Blanchard v. Cheramie, 485 F.2d 328 (5th Cir.1973). If the shipowner, in failing to provide maintenance and cure, has been callous and recalcitrant, Vaughan, 82 U.S. at 530-31, 83 S.Ct. at 999, or arbitrary or capricious, see Richard v. Bauer Dredging Co., 433 F.2d [954] 955 (5th Cir.1970), reasonable attorney’s fees may also be recovered. Gaspard v. Taylor Diving & Salvage Co., Inc., 649 F.2d 372, 375 (5th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982). The error is emphasized in a footnote: As noted in the text, willful and arbitrary conduct is a prerequisite only for an award of attorney’s fees. An unreasonable failure to provide proper care, even absent a showing of willfulness, callousness or arbitrariness, is sufficient to render the shipowner liable for full tort damages. Id. at 375 n. 4. Applying Vaughan and Merry Shipping, we conclude that where circumstances justify an award for punitive damages for failure to pay maintenance and cure or the proper amount thereof," }, { "docid": "8778194", "title": "", "text": "limited to those flowing from that failure. See 214 F.Supp. at 137. In these two cases the district courts apparently confused two types of damages — i. e., those resulting from aggravation of the injury caused by failure to pay maintenance and cure and attorney’s fees allowable only when there has been a willful failure to make such payments. The latter type is governed by Vaughan v. Atkinson, supra. As to the former the law is clear: If the master or owner fails to provide proper care and as a result the seaman’s condition is aggravated, the shipowner is liable not only for the increased medical expensés and maintenance that may become necessary but also for resulting damages. That is to say, following such a breach of duty the seaman may recover full tort damages, including compensation for total or partial disability which, the Taylor and Warren cases held, was not recoverable in an ordinary or unaggra-vated maintenance and cure action. G. Gilmore & C. Black, Jr.,’ The Law of Admiralty 311 (2nd ed. 1975) (footnote omitted). This was the type of damage Justice Cardozo discussed in Cortes v. Baltimore Insular Line, supra. See note 1, supra. Upon analysis, neither Solet nor Stewart supports the contention that punitive damages may be awarded in maintenance and cure cases in addition to counsel fees. We have found no authority awarding separately both punitive damages and attorney’s fees. On the contrary the routine practice has been for plaintiffs’ counsel to include simply a demand for counsel fees in all maintenance and cure cases; the award is permitted where the defendant’s conduct has been willful and persistent. G. Gilmore & C. Black, Jr., Law of Admiralty 313-14 (2nd ed. 1975). When counsel initially requested a charge on punitive damages Chief Judge Mishler commented, “In my seventeen years I haven’t had a single plaintiff come in and ask for punitive damages for failure to pay maintenance and cure.” However, he was persuaded to charge punitive damages by the opinion in Robinson v. Pocahontas, Inc., 477 F.2d 1048 (1st Cir. 1973). In that case the court" }, { "docid": "23286113", "title": "", "text": "to be implicit in Robinson’s complaint. In addition, however, in the instant case Sea Coast never made its position clear that such an award would be beyond the scope of the pleadings until after the court had instructed the jury. During trial no objection was raised to Robinson’s testimony concerning his rate of compensation or the fact that these wages had not been paid. Indeed, Sea Coast rigorously cross-examined plaintiff on these issues. Under these circumstances, especially since the complaint could have been amended if this issue had been seasonably raised, Sea Coast may not now challenge the propriety of this award. Sea Coast’s further contention that the trial court’s instruction permitting an award of punitive damages was erroneous as a matter of law is also without merit. Support for such an award is found in Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), where the Supreme Court held that a seaman could recover attorneys’ fees as damages where a shipowner was callous, willful, or recalcitrant in withholding these payments. Mr. Justice Stewart, dissenting primarily on the question of the extent of a seaman’s recovery for maintenance and cure but seemingly in agreement with the majority’s fundamental premise, stated: \"[I]f the shipowner’s refusal to pay maintenance stemmed from a wanton and intentional disregard of the legal rights of the seaman, the latter would be entitled to exemplary damages in accord with traditional concepts of the law of damages. McCormick, Damages, § 79. While the amount so awarded would be in the discretion of the fact finder, and would not necessarily be measured by the amount of counsel fees, indirect compensation for such expenditures might thus be made.” Id. at 540, 82 S.Ct. at 1004. Such awards or the right thereto have been upheld in the progeny of Vaughan. See, e. g., Solet v. M/V Capt. H. V. Dufrene, 303 F.Supp. 980, 989 (E.D.La.1969); Roberson v. S/S American Builder, 265 F.Supp. 794, 800 (E.D.Va.1967); Stewart v. S.S. Richmond, 214 F.Supp. 135, 136-137 (E.D.La.1963). The answer to Sea Coast’s further argument that the right to maintenance is" }, { "docid": "8778200", "title": "", "text": "and reasonable attorney fees may be allowed where required to obtain recovery from a callous, recalcitrant vessel owner. Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962). . Roberson v. S/S American Builder, 265 F.Supp. 794 (E.D.Va.1967), relied upon by ap-pellee, provides no support for his position. There it is clear that the damages for malicious behavior were measured by attorney’s fees. The court phrased the question of damages as follows: “to what extent should the shipowner respond in damages incurred by reason of attorney’s fees in [plaintiff’s] efforts to collect the maintenance legally due to him under the doctrine enunciated in Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88.” Id. at 799. From the method of computátion employed (one-third of the maintenance due during the period of defendant’s recalcitrance) it is quite clear that the court in Roberson was only awarding counsel fees. . This limitation on punitive damages is not unprecedented. C. McCormick, Damages §§ 78, 85 (1935). In Connecticut exemplary damages are limited to the expenses of litigation, including attorney’s fees. United Aircraft Corp. v. Internatioanl Ass’n of Machinists, 161 Conn. 79, 285 A.2d 330, 345 (1971), cert. denied, 404 U.S. 1016, 92 S.Ct. 675, 30 L.Ed.2d 663 (1972); Collens v. New Canaan Water Co., 155 Conn. 477, 234 A.2d 825, 831-32 (1967). One esteemed commentator has praised “the practical common sense of this restriction.” McCormick, supra, § 85 at 297." }, { "docid": "1994980", "title": "", "text": "and lodging, comparable to that received aboard the vessel, to a seaman who falls ill or becomes injured while in the service of the vessel. See, e.g., Vella v. Ford Motor Co., 421 U.S. 1, 3, 95 S.Ct. 1881, 43 L.Ed.2d 682 (1975); The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 47 L.Ed. 760 (1903); G. Gilmore and C. Black, Jr., The Law of Admiralty 281 (2d ed. 1975) (“Gilmore & Black”); T. Schoenbaum, Admiralty and Maritime Law § 6-28, at 348 (2d ed. 1994) (“Schoenbaum”). The duty to pay maintenance arises regardless of whether the shipowner was negligent and regardless of whether the illness or injury was job-related, see, e.g., Vella v. Ford Motor Co., 421 U.S. at 4, 95 S.Ct. 1381; and the duty to make such payments continues until the seaman has recovered or his condition is declared permanent and incurable, see, e.g., id. at 5, 95 S.Ct. 1381; Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962). The reasons underlying the rule ... are those enumerated in the classic passage by Mr. Justice Story in Harden v. Gordon, Fed. Cas. No. 6047 (C.C.) [1823]: the protection of seamen, who, as a class, are poor, friendless and improvident, from the hazards of illness and abandonment while ill in foreign ports; the inducement to masters and owners to protect the safety and health of seamen while in service; the maintenance of a merchant marine for the commercial service and maritime defense of the nation by inducing men to accept employment in an arduous and perilous service. Vaughan v. Atkinson, 369 U.S. at 531, 82 S.Ct. 997 (internal quotation marks omitted). As a right judicially fashioned to protect “poor, friendless and improvident” seamen, [m]aintenance ... differs from rights normally classified as contractual. As Mr. Justice Cardozo said in Cortes v. Baltimore Insular Line, supra, [287 U.S. 367,] 371, 53 S.Ct. 173, 77 L.Ed. 368 [1932], the duty to provide maintenance ... “is imposed by the law itself as one annexed to the employment.... Contractual it is in the sense that it has its" }, { "docid": "22698656", "title": "", "text": "indicates, the petitioner’s return to work was completely voluntary, and not the result of the shipowner’s failure to pay maintenance. Holding the seaman accountable for his earnings in such circumstances carries out the basic purpose of making the seaman whole, and creates neither an undue incentive for withholding payments, nor pressure compelling a premature return to work. I therefore think that the District Court and the Court of Appeals were right in holding that the petitioner was not entitled to maintenance for the period during which he was gainfully employed as a taxicab driver. The second issue presented in this case is whether the petitioner should have been awarded damages in the amount of the counsel fees incurred in bringing his action for maintenance and cure. The Court held in Cortes v. Baltimore Insular Line, supra, at 371, that “[i]f the failure to give maintenance or cure has caused or aggravated an illness, the seaman has his right of action for the injury thus done to him, the recovery in such circumstances including not only necessary expenses, but also compensation for the hurt.” But neither the Cortes decision, nor any other that I have been able to find, furnishes a basis for holding as a matter of law that a seaman forced to bring suit to recover maintenance and cure is also entitled to recover his counsel fees. Cortes dealt with compensatory damages for a physical injury, and the opinion in that case contains nothing to indicate a departure from the well-established rule that counsel fees may not be recovered as compensatory damages. McCormick, Damages, § 61. However, if the shipowner’s refusal to pay maintenance stemmed from a wanton and intentional disregard of the legal rights of the seaman, the latter would be entitled to exemplary damages in accord with traditional concepts of the law of damages. McCormick, Damages, § 79. While the amount so awarded would be in the discretion of the fact finder, and would not necessarily be measured by the amount of counsel fees, indirect compensation for such expenditures might thus be made. See Day v. Woodworth," }, { "docid": "8778198", "title": "", "text": "more than counsel fees as damages for the defendant’s willful refusal to pay maintenance and cure. Appellant, while admitting that counsel fees are recoverable where the defendant’s refusal to pay maintenance and cure is “willful and persistent” or “callous,” and not disputing on this appeal that counsel fees were properly recoverable, has urged that its conduct was not sufficiently heinous to merit an award of punitive damages. We refuse to draw any distinction in degree between the pejorative adjectives employed to describe defendant’s behavior in maintenance and cure cases allowing counsel fees and those used in normal punitive damage cases. There was no real difference between the type of behavior described by the majority in Atkinson to justify the award of counsel fees and by the minority to support a finding of punitive damages not limited to counsel fees. A finding of a wanton and intentional disregard of a seaman’s rights would be necessary to trigger either type of award no matter what judicial epithet is employed to describe the conduct. The trial court therefore erred in submitting the request for punitive damages to the jury. Consequently, the judgment entering the $3,000 award of punitive damages is reversed. The case is remanded for entry of judgment in accordance with this opinion. . The reference to Mr. Justice Cardozo’s opinion in Cortes v. Baltimore Insular Line is apparently to this sentence: “If the failure to give maintenance or cure has caused or aggravated an illness, the seaman has his right of action for the injury thus done to him, the recovery in such circumstances including not only necessary expenses, but also compensation for the hurt.” Since counsel fees are nowhere mentioned in the opinion, it is probable that the expenses referred to were medical and not legal. See G. Gilmore & C. Black, Jr., The Law of Admiralty 311 (2nd ed. 1975). . As the court stated in Blanchard v. Cheramie, 485 F.2d 328, 331 (5th Cir. 1973): Failure to give maintenance and cure may give rise to a claim for damages for the suffering, for the physical handicap, which follows," }, { "docid": "23417285", "title": "", "text": "might be materially different. However, in an action for arbitrary and willful failure to pay maintenance and cure, attorney’s fees are not “similar to costs,” at all but rather are an element of damages which may be recovered. As the Supreme Court stated in its seminal decision allowing an award of attorney’s fees in an action for maintenance and cure: Nor do we have the usual problem of what constitutes “costs\" in the conventional sense. Cf. The Baltimore, 8 Wall. 377 [19 L.Ed. 463]. Our question concerns damages. Counsel fees were allowed in The Apollon, 9 Wheat. 362, 379 [6 L.Ed. Ill], an admiralty suit where one party was put to expense in recovering demurrage of a vessel wrongfully seized. While failure to give maintenance and cure may give rise to a claim for damages for the suffering and for the physical handicap which follows (The Iroquois, 194 U.S. 240 [24 S.Ct. 640, 48 L.Ed. 955]), the recovery may also include “necessary expenses.” Cortes v. Baltimore Insular Line, 287 U.S. 367, 371 [53 S.Ct. 173, 174, 77 L.Ed. 368]. In the instant case respondents were callous in their attitude, making no investigation of libellant’s claim and by their silence neither admitting nor denying it. As a result of that recalcitrance, libellant was forced to hire a lawyer and go to court to get what was plainly owed him under laws that are centuries old. The default was willful and persistent. It is difficult to imagine a clearer case of damages suffered for failure to pay maintenance than this one. Vaughan v. Atkinson, 369 U.S. 527, 530, 82 S.Ct. 997, 999, 8 L.Ed.2d 88 (1962) (emphasis added). Additionally, we emphasize two critical facts that indicate that the attorney’s fees were integral to the determination of the merits of the action. First, Holmes requested the attorney’s fees as part of his damages for McDermott’s arbitrary and willful failure to pay maintenance and cure, and this requested relief was included in the pretrial order. Second, the jury was charged on the issue of attorney’s fees and the jury returned a verdict awarding them." } ]

[ { "docid": "11127994", "title": "", "text": "seeks to litigate under a pseudonym, a district court has an independent obligation to ensure that extraordinary circumstances support such a request by balancing the party’s stated interest in anonymity against the public’s interest in openness and any prejudice that anonymity would pose to the opposing party. With due respect for the discretion we afford to the district court’s ability to balance the relevant Jacobson factors in weighing the competing interests at stake, we conclude that the court abused its discretion in permitting Company Doe to litigate under a pseudonym. In allowing Company Doe to proceed anonymously, the district court gave no explicit consideration to the public’s interest in open judicial proceedings. As we have explained, the public interest in the underlying litigation is especially compelling given that Company Doe sued a federal agency. See Doe v. Megless, 654 F.3d 404, 411 (3d Cir.2011) (explaining that public’s interest in disclosure of plaintiffs identity was “heightened” because defendants were “public officials and government bodies” (citation omitted) (internal quotation marks omitted)); Femedeer v. Haun, 221 F.3d 1244, 1246 (10th Cir.2000) (noting that “the public has an important interest in access to legal proceedings, particularly those attacking ... properly enacted legislation”). Further, unlike cases in which courts granted pseudonymity to protect “privacy or confidentiality concerns,” Jacobson, 6 F.3d at 238, courts consistently have rejected anonymity requests to prevent speculative and unsubstantiated claims of harm to a company’s reputational or economic interests, see, e.g., Nat’l Commodity & Barter Ass’n v. Gibbs, 886 F.2d 1240, 1245 (10th Cir.1989) (per curiam) (explaining that pseudonymity “has not been permitted when only the plaintiffs economic or professional concerns are involved” and collecting cases). Although the use of a fictitious name has been permitted in cases involving the disclosure of confidential information, Company Doe has made no showing that such interests were implicated in this case. Instead, Company Doe commenced this action to challenge the Commission’s decision to publish a re port pertaining to one of Company Doe’s products in the Commission’s online database. We have explained that use of a pseudonym “merely to avoid the annoyance and criticism" } ]

[ { "docid": "4944933", "title": "", "text": "telephone calls. However, the plaintiffs claim in this case is directed at and could potentially affect only a limited number of individuals, namely the defendants. Thus, it is highly unlikely that she could reasonably expect harassment from the community in general. Rather, the source of any harassment apparently is already aware of plaintiff’s identity, and there is little reason to believe that disclosure of her identity in this lawsuit would serve to increase the number of such incidents. Moreover, the court would note that by filing her complaint, the plaintiff has levelled serious charges against the defendants, and has specifically identified them in the complaint. In Wynne & Jaffe, the Fifth Circuit noted that, the mere filing of a civil action against other private parties may cause damages to their good names and reputation and may also result in economic harm. Defendant[s] ... stand publicly accused of serious violations of federal law.' Basic fairness dictates that those among the defendants’ accusers who wish to participate in this suit as individual party plaintiffs must do so under their real names. Wynne & Jaffe, 599 F.2d at 713. The court in the present case does not wish to minimize the significance of the plaintiff’s fears of humiliation, embarrassment and reprisal, but nevertheless concludes that plaintiff, if she desires to proceed with this lawsuit, must reveal her true identity as a matter of basic fairness and consistent with the policy of disclosure of parties’ identities. She has not demonstrated that this is an exceptional case in which a compelling need exists to protect an important safety or privacy interest. See Free Market Compensation v. Commodity Exchange, Inc., 98 F.R.D. 311, 312 (S.D.N.Y.1983). Although the court has concluded that plaintiff may not proceed in this cause as Jane Doe, the court nevertheless finds that defendants’ objection to the court’s jurisdiction and the validity of process is not well taken. The court is not bound by and declines to follow the holding in Roe v. State of New York. Although plaintiff did bring this action as Jane Doe and did not reveal her true name" }, { "docid": "18413413", "title": "", "text": "the Bankruptcy Code,” or a substantially similar statement. 11 U.S.C. § 528(a)(4), (b)(2). Plaintiffs are bankruptcy attorneys, their law firm, and two unnamed members of the public. Their attack on the statute is based on the First Amendment to the United States Constitution. They allege BAPCPA’s debt relief agency provisions are unconstitutional as applied to them. They, initially, claim BAPCPA’s regulation of attorneys’ advice violates the First Amendment. Next, they claim BAPCPA’s advertising requirements contravene the First Amendment. Ultimately, they contend Congress did not intend the debt relief agency requirements to apply to attorneys. The government moves to dismiss plaintiffs’ First Amendment claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). The government’s motion is denied. II. Discussion A. Motion to Dismiss A Rule 12(b)(6) motion to dismiss must be denied unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. See Murphy v. Lancaster, 960 F.2d 746, 748 (8th Cir.1992). In considering such a motion, the court construes the complaint, and all of its reasonable inferences, most favorably to plaintiff. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990). B. Unnamed Plaintiffs The complaint purports to set out the claims of two unnamed parties: John Doe and Mary Doe. The government denies there is any legal basis for anonymous plaintiffs in this lawsuit. Indeed, Fed. R.Civ.P. 10(a) is explicit: a complaint “shall include the names of all the parties.” Notwithstanding Rule 10(a), plaintiffs claim their ease falls within a limited realm of cases in which other interests—i.e., pri vacy and concern about embarrassment— outweigh the public’s interest in open disclosure. Plaintiffs are incorrect. There is a strong presumption against allowing parties to use a pseudonym. See, e.g., Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir.1997); Doe v. Frank, 951 F.2d 320, 323-24 (11th Cir.1992); Southern Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712-13 (5th Cir.1979). The reasons are obvious and compelling: identification of litigants is" }, { "docid": "15292370", "title": "", "text": "“has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ ” Id. at 323 (quoting Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.1981)). The court identified three circumstances common to those cases where a plaintiff was permitted to proceed under a fictitious name. Those circumstances were: (1) plaintiffs challenging governmental activity; (2) plaintiffs required to disclose information of the utmost intimacy; and (3) plaintiffs compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution. Frank, 951 F.2d at 323 (citing Stegall, 653 F.2d at 185). The factors enumerated in Frank and Stegall were not intended as a “ ‘rigid, three-step test for the propriety of party anonymity.’ ” Id. (quoting Stegall, 653 F.2d at 185). The mere presence of one factor was not meant to be dispositive, but rather, these factors were “highlighted merely as factors deserving consideration.” Id. Instead, a court must “carefully review all the circumstances of a given case and then decide whether the customary practice of disclosing the plaintiffs identity should yield to the plaintiffs privacy concerns.” Id.; see' also [Methodist Univ. Ass’n of Women Law Students v.] Wynne & Jaffe, 599 F.2d [707,] 713 [(5th Cir.1979)]. Heather K., 887 F.Supp. at 1255-56; accord Luckett, 21 F.Supp.2d at 1029 (“Although the listed factors [from Frank and Stegall ] are not exhaustive, they provide valuable guidance.”). Some recent decisions have added to the three pertinent considerations suggested in Frank and Stegall.. These decisions suggest consideration of (4) whether the plaintiff would risk injury if identified; (5) whether the party defending against a suit brought under a pseudonym would thereby be prejudiced, see Free Speech, 1999 WL 47310 at *2 (citing Shakur, 164 F.R.D. at 360, as considering these factors in-addition to the three cited in Frank)-, (6) the extent to which the identity of the litigant has been kept confidential; (7) whether, because of the purely legal na ture of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants’ identities, see id. (citing Doe v. Provident Life and" }, { "docid": "4944932", "title": "", "text": "her desire to proceed anonymously lies in her having “divulged personal information of the utmost intimacy.” See Wynne & Jaffe, 599 F.2d at 713. In Doe v. Rostker, the court recognized that a plaintiff should be permitted to proceed anonymously in cases where a substantial privacy interest is involved. The most compelling situations involve matters which are highly sensitive, such as social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of the plaintiffs identity. That the plaintiff may suffer some embarrassment or economic harm is not enough. There must be a strong social interest in concealing the identity of the plaintiff. Rostker, 89 F.R.D. at 162 (emphasis added). Plaintiff has submitted to the court an affidavit, under seal, wherein she states that if she is required to reveal her true identity, she fears that she will be subjected to harassment and retaliation, and in support of her fears cites incidents which have occurred since her filing of this action, including as examples unsettling telephone calls. However, the plaintiffs claim in this case is directed at and could potentially affect only a limited number of individuals, namely the defendants. Thus, it is highly unlikely that she could reasonably expect harassment from the community in general. Rather, the source of any harassment apparently is already aware of plaintiff’s identity, and there is little reason to believe that disclosure of her identity in this lawsuit would serve to increase the number of such incidents. Moreover, the court would note that by filing her complaint, the plaintiff has levelled serious charges against the defendants, and has specifically identified them in the complaint. In Wynne & Jaffe, the Fifth Circuit noted that, the mere filing of a civil action against other private parties may cause damages to their good names and reputation and may also result in economic harm. Defendant[s] ... stand publicly accused of serious violations of federal law.' Basic fairness dictates that those among the defendants’ accusers who wish to participate in this suit as individual party plaintiffs must do so" }, { "docid": "89190", "title": "", "text": "of Article III of the Constitution “requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1925-1926, 48 L.Ed.2d 450 (1976). . Although plaintiffs have offered to reveal their names to the court in camera and proceed unnamed as they wish, this approach would not address the issue of whether they have a right to do so under the circumstances of this case. . See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), in which the Supreme Court established that it might accept as true Mary Doe’s existence and pregnant state on the date in question, despite her use of a pseudonym. The court takes it on faith by the representations of plaintiffs’ attorneys that these three men actually exist, and each is described in the complaint as a real person. . See Southern Methodist University Assn. v. Wynne and Jaffe, 599 F.2d 707, 713 (5th Cir. 1979), in which an association of female law students brought a Title VII action against a Dallas law firm for allegedly discriminating against women in its hiring practices. The Fifth Circuit upheld the district court’s refusal to permit certain female lawyers wishing to intervene to proceed anonymously as there was neither an express congressional grant of right or “compelling need to protect privacy in a very private matter.” . Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir. 1975), cert. denied, 444 U.S. 856, 100 S.Ct. 116, 62 L.Ed.2d 75 (1979). . Fed.R.Civ.P. 41(b) provides in part: “Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action.... Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule ... operates" }, { "docid": "23208599", "title": "", "text": "requires a complaint to “include the names of all the parties.” This rule serves more than administrative convenience. It protects the public’s legitimate interest in knowing all of the facts involved, including the identities of the parties. Doe v. Rostker, 89 F.R.D. 158, 160 (N.D.Cal.1981); Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974). Doe points out that he is challenging government activity and that the prosecu tion of his suit would compel him to disclose information of the utmost secrecy, i.e., his alcoholism. Relying on Doe v. Stegall, 653 F.2d 180 (5th Cir. Unit A Aug. 1981), Doe argues that these circumstances are enough to overcome the clear mandate of Rule 10(a). The Postal Service agrees that Stegall sets out this Circuit’s test for anonymity, but argues that the circumstances in this case simply do not overcome Rule 10(a)’s explicit requirement of disclosure. The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the “customary and constitutionally-embedded presumption of openness in judicial proceedings.” Stegall, 653 F.2d at 186. It is the exceptional case in which a plaintiff may proceed under a fictitious name. In Stegall, the Fifth Circuit isolated and catalogued the circumstances common to the “Doe cases” collected in its prior opinion, Southern Methodist Univ. Ass’n v. Wynne & Jaffe, 599 F.2d 707, 712 (5th Cir.1979). Those circumstances were: (1) plaintiffs challenging governmental activity; (2) plaintiffs required to disclose information of the utmost intimacy; and (3) plaintiffs compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution. Stegall, 653 F.2d at 185. The enumerated factors in Stegall were not intended as a “rigid, three-step test for the propriety of party anonymity.” Id. Nor was the presence of one factor meant to be dispositive. Instead, they were highlighted merely as factors deserving consideration. A judge, therefore, should carefully review all the circumstances of a given case and then decide whether the customary practice of disclosing the plaintiff’s identity should yield to the plaintiff’s privacy concerns. Wynne & Jaffe, 599 F.2d at 713. The proper standard" }, { "docid": "4944930", "title": "", "text": "the issues involved are matters of highly sensitive and highly personal nature,” such as birth control, abortion, homosexuality or the welfare rights of illegitimate children or abandoned families, the normal practice of disclosing any parties’ identities yields “to a policy of protecting privacy in a very private matter.” Wynne & Jaffe, 599 F.2d at 712 (quoting Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974) (footnotes omitted). The court went on to note certain common characteristics in cases affording plaintiffs anonymity. The plaintiffs in those actions ... divulged personal information of the utmost intimacy; many also had to admit that they either had violated state laws or government regulations or wished to engage in prohibited conduct____ Furthermore, all ... were challenging the constitutional, statutory or regulatory validity of government activity. Wynne & Jaffe, 599 F.2d at 713. The Fifth Circuit has since made it clear that the common characteristics noted in Wynne & Jaffe need not each be present in order for a plaintiff to be allowed to proceed anonomously, but they do “deserve considerable weight in the balance pitting privacy concerns against the presumption of openness of judicial proceedings.” See Doe v. Stegall, 653 F.2d 180, 185 (5th Cir.1981). In the case at bar, plaintiff seeks to avoid disclosing her true name in order to protect herself against embarrassment and unwanted invasion of her personal privacy since the matters contained in her complaint, she charges, are private matters of an intimate personal nature. For that reason, plaintiff maintains that she is entitled to file the complaint and proceed in this cause anonymously. The court however, while not unsympathetic with plaintiff’s pleas for privacy, is not persuaded that the need for anonymity is so compelling as to permit nondisclosure. The nature of the claims charged by plaintiff in the case at bar does. not involve any admission by plaintiff that she has violated the law or that she desires to engage in illegal conduct, nor does she seek to challenge the validity of any government activity. Rath er she alleges improper conduct toward her by private individuals. The only basis for" }, { "docid": "1215009", "title": "", "text": "question of anonymous plaintiffs on the merits. . The court cited no authority that supported this finding about the nature of information on immigration status (though defendant cites approvingly to the holding), but instead pointed to Southern Methodist University Association of Women Law Students v. Wynne & Jaffe, a case that refused a request by plaintiffs who were women law students to proceed anonymously in their challenge to a law firm's hiring practices. See Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir.1979). We find that the situations faced by women law students during their job search are quite different from those faced by undocumented immigrants who face the possibility that their opponents in a lawsuit will reveal information that could have dire legal consequences. The women law students did not, after all, face the possibility of deportation or exposure to an angry public convinced that their mere presence in the community was a threat to social order. The Court in Merlen nevertheless acknowledged that in Plyler, the Supreme Court permitted “illegal aliens ... to proceed anonymously in their successful constitutional challenge to the Texas law denying free public grammar school education to illegal alien children.\" Merten, 219 F.R.D. at 391. In a footnote, the Merten court pointed out that “it should be noted that in neither Plyler nor Roe [v. Wade] does it appear that the issue of anonymity was contested or litigated.” Id. at 391 n. 12. We assign more importance than the Merten court did to the fact that plaintiffs in the Plyler and Roe cases proceeded anonymously. Apparently, no federal court which examined the Plyler case found the use of anonymous plaintiffs troubling enough to address the issue, but instead concluded that the plaintiffs had legitimate reasons for refusing the reveal their true names in that high-profile case. The fact that the parties did not litigate the issue is certainly not evidence that the use of pseudonyms was not vital to allowing the plaintiffs in that case (or in Roe for that matter) to vindicate their rights. . The protestors' reaction to these cameras, despite the" }, { "docid": "23208600", "title": "", "text": "653 F.2d at 186. It is the exceptional case in which a plaintiff may proceed under a fictitious name. In Stegall, the Fifth Circuit isolated and catalogued the circumstances common to the “Doe cases” collected in its prior opinion, Southern Methodist Univ. Ass’n v. Wynne & Jaffe, 599 F.2d 707, 712 (5th Cir.1979). Those circumstances were: (1) plaintiffs challenging governmental activity; (2) plaintiffs required to disclose information of the utmost intimacy; and (3) plaintiffs compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution. Stegall, 653 F.2d at 185. The enumerated factors in Stegall were not intended as a “rigid, three-step test for the propriety of party anonymity.” Id. Nor was the presence of one factor meant to be dispositive. Instead, they were highlighted merely as factors deserving consideration. A judge, therefore, should carefully review all the circumstances of a given case and then decide whether the customary practice of disclosing the plaintiff’s identity should yield to the plaintiff’s privacy concerns. Wynne & Jaffe, 599 F.2d at 713. The proper standard of review upon appeal is whether the trial court abused its discretion. Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir.), cert. denied, 444 U.S. 856, 100 S.Ct. 116, 62 L.Ed.2d 75 (1979). After a careful review of all the circumstances of this case, we cannot say the trial court abused its discretion in denying Doe’s motion to proceed anonymously. Doe argues that his case for anonymity is supported by the fact that he is suing the government. While this factor may be significant, it must be viewed in the context that it was first articulated. “Challenging the ... validity of government activity” was initially mentioned as a factor in Southern Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707 (5th Cir.1979). The case involved, inter alia, four female lawyers who wanted to proceed anonymously against two Dallas law firms in a sex discrimination suit. After observing that most of the cases permitting plaintiffs to proceed anonymously involved actions challenging government activity, the court went on to explain the" }, { "docid": "18281097", "title": "", "text": "and highly personal nature,’ such as birth control, abortion, homosexuality or the welfare rights of illegitimate children or abandoned families, the normal practice of disclosing the parties’ identities yields ‘to a policy of protecting privacy in a very private matter.’ ” Southern Methodist University Ass’n v. Wynne & Jaffe, 599 F.2d 707-712-713 (5th Cir.1979) citing Deschamps, supra, at 653. Free Market does not allege that revealing “John Doe’s” identity would implicate a recognized privacy interest involving “matters of a sensitive and highly personal nature.” Free Market contends that “John Doe’s” ability to supply confidential information would be compromised by his appearance in his true name. Such a claim does not outweigh the policy of disclosure of plaintiffs’ identities embodied in Rule 10(a). “John Doe’s” desire to avoid professional embarrassment and economic loss is insufficient to permit him to appear without disclosing his identity. See Southern Methodist, supra, at 713. In Southern Methodist, the Fifth Circuit affirmed a district court’s order requiring disclosure of the identities of female lawyers who publicly accused defendant law firms of violating Title VII by discriminating against women in the hiring of summer clerks and associates. We find persuasive the reasoning of the Fifth Circuit that when a plaintiff publicly accuses a defendant of serious violations of federal law, “[b]asic fairness dictates that those among the defendants’ accusers who wish to participate in the suit as individual party plaintiffs must do so under their real names.” Id. Moreover, as the Tenth Circuit noted in Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir.1979), the use of pseudonyms concealing plaintiffs’ real names “may cause problems to defendants engaging in discovery and establishing their defenses, and in fixing res judicata effects of judgments.” Permitting Free Market to add an anonymous plaintiff who is supplying confidential information may frustrate Commodity Exchange’s ability to establish defenses, privileges or counterclaims against “John Doe.” We decline Free Market’s offer to disclose “John Doe’s” identity in camera. It is the public, not the court, which has an interest in the disclosure of the parties’ identities. The public’s interest in an open judicial" }, { "docid": "23208602", "title": "", "text": "significance of this fact: While such suits involve no injury to the Government’s “reputation,” the mere filing of a civil action against other private parties may cause damage to their good names and reputation and may also result in economic harm. Defendant law firms stand publicly accused of serious violations of federal law. Basic fairness dictates that those among the defendants’ accusers who wish to participate in this suit as individual party plaintiffs must do so under their real names. Wynne & Jaffe, 599 F.2d at 713. Thus, because the plaintiffs were suing private individuals rather than a government agency, the court found more reason not to grant the plaintiffs’ request for anonymity. Wynne & Jaffe does not stand, however, for the proposition that there is more reason to grant a plaintiff’s request for anonymity if the plaintiff is suing the government. Consequently, the fact that Doe is suing the Postal Service does not weigh in favor of granting Doe’s request for anonymity. Doe also contends that he will have to face the disapproval of many in his community if he is required to prosecute this case under his real name. Divulging personal information of the utmost intimacy or having to admit an intent to engage in prohibited conduct are proper factors to consider when a plaintiff requests anonymity, Wynne & Jaffe, 599 F.2d at 713, but the fact that Doe may suffer some personal embarrassment, standing alone, does not require the granting of his request to proceed under a pseudonym. Free Mrkt. Compensation v. Commodity Exch., Inc., 98 F.R.D. 311, 313 (S.D.N.Y.1983); Rostker, 89 F.R.D. at 162. Courts have permitted plaintiffs to proceed anonymously in cases involving mental illness, Doe v. Colautti, 592 F.2d 704 (3d Cir.1979); homosexuality, Doe v. Commonwealth’s Attorney for Richmond, 403 F.Supp. 1199 (E.D.Va.1975), aff'd, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976); and transsexuality, Doe v. McConn, 489 F.Supp. 76 (S.D.Tex.1980). In these cases, the social stigma attached to the plaintiff's disclosure was found to be enough to overcome the presumption of openness in court proceedings. We find no abuse of discretion" }, { "docid": "15292371", "title": "", "text": "identity should yield to the plaintiffs privacy concerns.” Id.; see' also [Methodist Univ. Ass’n of Women Law Students v.] Wynne & Jaffe, 599 F.2d [707,] 713 [(5th Cir.1979)]. Heather K., 887 F.Supp. at 1255-56; accord Luckett, 21 F.Supp.2d at 1029 (“Although the listed factors [from Frank and Stegall ] are not exhaustive, they provide valuable guidance.”). Some recent decisions have added to the three pertinent considerations suggested in Frank and Stegall.. These decisions suggest consideration of (4) whether the plaintiff would risk injury if identified; (5) whether the party defending against a suit brought under a pseudonym would thereby be prejudiced, see Free Speech, 1999 WL 47310 at *2 (citing Shakur, 164 F.R.D. at 360, as considering these factors in-addition to the three cited in Frank)-, (6) the extent to which the identity of the litigant has been kept confidential; (7) whether, because of the purely legal na ture of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants’ identities, see id. (citing Doe v. Provident Life and Acc. Ins. Co., 176 F.R.D. 464, 467 (E.D.Pa.1997), for these last two factors); and (8) whether the interests of children are at stake. Indiana Black Expo, Inc., 923 F.Supp. at 139. The ultimate test, however, remains “whether the plaintiff has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ ” See Frank, 951 F.2d at 323; accord Heather K., 887 F.Supp. at 1256 (quoting Frank); Free Speech, 1999 WL 47310 at *2 (also quoting Frank); Indiana Black Expo, Inc., 923 F.Supp. at 139 (also quoting Frank). b. Application of the factors Of the three Frank factors, Doe’s claims would seem to fall, if anywhere, within the “utmost intimacy” category. See Frank, 951 F.2d at 323. The defendants are correct, however, that the “sexual” nature of the alleged wrongdoing here is not necessarily sufficient to warrant Doe’s prosecution of this lawsuit under a pseudonym. For example, in Luckett, the court concluded that, “[tjhough discussing alleged sexual coercion and discrimination is undoubtedly uncomfortable, it is not such an invasion of" }, { "docid": "19022608", "title": "", "text": "her own interests. This is not a criminal case where rape shield laws might provide some anonymity to encourage victims to testify to vindicate the public’s interest in enforcement of our laws. See id. (rape shield laws “apply to situations where the government chooses to prosecute a case, and offer[ ] anonymity to a victim who does not have a choice in or control over the prosecution”). Indeed, the public’s interest in bringing defendants to justice for breaking the law— assuming that they did — is being vindicated in the criminal proceedings. Third, Shakur has been publicly accused. If plaintiff were permitted to prosecute this case anonymously, Shakur would be placed at a serious disadvantage, for he would be required to defend himself publicly while plaintiff could make her accusations from behind a cloak of anonymity. See Southern Methodist Univ. Ass’n of Women Law Students, 599 F.2d at 713 (Because “the mere filing of a civil action against ... private parties may cause damage to their good names and reputation,” “[bjasic fairness” dictates that plaintiffs who publicly accuse defendants in civil suits “must [sue] under their real names.”); Doe v. Hallock, 119 F.R.D. 640, 644 (S.D.Miss.1987) (“[B]y filing her complaint, the plaintiff has levelled serious charges against the defendants, and has specifically identified them in the complaint.”). Finally, the public has a right of access to the courts. Indeed, “lawsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among those facts is the identity of the parties.” Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974); accord Doe v. Rostker, 89 F.R.D. 158, 162 (N.D.Cal.1981); see also United States v. Amodeo, 71 F.3d 1044, 1047-49 (2d Cir.1995) (discussing the “presumption of access” in the context of the sealing of documents filed in court). Other courts faced with a request by a victim of a sexual assault seeking to prosecute a civil case under a pseudonym have also concluded that the plaintiff was not entitled to do so. See, e.g., Bell Atlantic, 162 F.R.D. at 422 (in sexual harassment case against employer and" }, { "docid": "23208601", "title": "", "text": "of review upon appeal is whether the trial court abused its discretion. Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir.), cert. denied, 444 U.S. 856, 100 S.Ct. 116, 62 L.Ed.2d 75 (1979). After a careful review of all the circumstances of this case, we cannot say the trial court abused its discretion in denying Doe’s motion to proceed anonymously. Doe argues that his case for anonymity is supported by the fact that he is suing the government. While this factor may be significant, it must be viewed in the context that it was first articulated. “Challenging the ... validity of government activity” was initially mentioned as a factor in Southern Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707 (5th Cir.1979). The case involved, inter alia, four female lawyers who wanted to proceed anonymously against two Dallas law firms in a sex discrimination suit. After observing that most of the cases permitting plaintiffs to proceed anonymously involved actions challenging government activity, the court went on to explain the significance of this fact: While such suits involve no injury to the Government’s “reputation,” the mere filing of a civil action against other private parties may cause damage to their good names and reputation and may also result in economic harm. Defendant law firms stand publicly accused of serious violations of federal law. Basic fairness dictates that those among the defendants’ accusers who wish to participate in this suit as individual party plaintiffs must do so under their real names. Wynne & Jaffe, 599 F.2d at 713. Thus, because the plaintiffs were suing private individuals rather than a government agency, the court found more reason not to grant the plaintiffs’ request for anonymity. Wynne & Jaffe does not stand, however, for the proposition that there is more reason to grant a plaintiff’s request for anonymity if the plaintiff is suing the government. Consequently, the fact that Doe is suing the Postal Service does not weigh in favor of granting Doe’s request for anonymity. Doe also contends that he will have to face the disapproval of" }, { "docid": "18413414", "title": "", "text": "construes the complaint, and all of its reasonable inferences, most favorably to plaintiff. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990). B. Unnamed Plaintiffs The complaint purports to set out the claims of two unnamed parties: John Doe and Mary Doe. The government denies there is any legal basis for anonymous plaintiffs in this lawsuit. Indeed, Fed. R.Civ.P. 10(a) is explicit: a complaint “shall include the names of all the parties.” Notwithstanding Rule 10(a), plaintiffs claim their ease falls within a limited realm of cases in which other interests—i.e., pri vacy and concern about embarrassment— outweigh the public’s interest in open disclosure. Plaintiffs are incorrect. There is a strong presumption against allowing parties to use a pseudonym. See, e.g., Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir.1997); Doe v. Frank, 951 F.2d 320, 323-24 (11th Cir.1992); Southern Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712-13 (5th Cir.1979). The reasons are obvious and compelling: identification of litigants is recognized as important in a public proceeding. See Blue Cross, 112 F.3d at 872. A party who invokes the judicial powers of the United States invites public scrutiny. “The people have a right to know who is using their courts.” Id. Limited exceptions to the party-publicity rule exist. Case law has recognized three factors which, if present, might support anonymity. They have been found when “(1) plaintiffs seeking anonymity were suing to challenge governmental activity; (2) prosecution of the suit compelled plaintiffs to disclose information ‘of the utmost intimacy;’ and (3) plaintiffs were compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution.” Doe v. Stegall, 653 F.2d 180, 185 (5th Cir.1981) (quoting Wynne & Jaffe, 599 F.2d at 712-13). Although the listed factors are not exhaustive, they provide valuable guidance. While the first factor is present here, the third is not. Plaintiffs argue their “wish to obtain legal advice from [plaintiff] attorneys ... about prebank-ruptcy planning and filing bankruptcy” (1st Am.Compl.l 10) suffices for the second factor. According to the" }, { "docid": "7621381", "title": "", "text": "(2) whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; (3) the ages of the persons whose privacy interests are sought to be protected; (4) whether the action is against a governmental or private party; and (5) the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously. Nat’l Ass’n of Waterfront Employers v. Chao, 587 F.Supp.2d 90, 99 (D.D.C.2008). The -last three factors are relatively straightforward. Plaintiff was an adult at the time of the events in question and is suing private individuals and entities, factors which weigh against anonymity. Defendants do not assert that their ability to defend this lawsuit against an anonymous plaintiff will unduly prejudice them, which weighs in favor of anonymity. Personal embarrassment is normally not a sufficient basis for permitting anonymous litigation. Chao, 587 F.Supp.2d at 100 (citing Qualls); see also Doe v. Frank, 951 F.2d 320, 324 (11th Cir.1992) (plaintiff who would have to disclose alcoholism not permitted to proceed anonymously despite social stigma and embarrassment). Sexual harassment is not typically considered a matter so highly personal as to warrant proceeding by pseudonym. See Chao, 587 F.Supp.2d at 99 n.8 (“Matters of a sensitive and highly personal nature include those dealing with birth control, abortion, homosexuality or the welfare rights of illegitimate children or abandoned families”); S. Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712-13 (5th Cir.1979) (law students’ allegations of sex discrimination against law firms did not warrant anonymity). Although some courts have permitted sexual assault victims to proceed via a pseudonym in order to protect their privacy, those cases have emphasized the importance of doing so in order to avoid deterring other victims from “reporting such crimes.” Doe No. 2 v. Kolko, 242 F.R.D. 193, 195 (E.D.N.Y.2006); Doe v. Evans, 202 F.R.D. 173, 176 (E.D.Pa.2001) (“the public has a interest in protecting the identities of sexual assault victims so that other victims will feel more comfortable suing to vindicate their rights, especially where law enforcement" }, { "docid": "4944929", "title": "", "text": "suing him. Doe v. Rostker, 89 F.R.D. 158, 162 (N.D.Cal.1981). It must be borne in mind, though, that the policy under Rule 10 favors disclosure of the names of litigants, such that identifying a plaintiff only by a pseudonym is an unusual procedure, to be allowed only where there is an important privacy interest to be recognized. Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir.1979); see also Doe v. Deschamps, 64 F.R.D. 652, at 653 (D.Mont.1974) (court should grant permission to proceed under fictitious name only in exceptional circumstances where interest of justice so requires). That is, there are limited exceptions to the Rule 10 requirement of disclosure where parties have strong interests in proceeding anonymously. Doe v. Rostker, 89 F.R.D. at 161. In Southern Methodist University Association v. Wynne & Jaffe, 599 F.2d 707 (5th Cir.1979), the Fifth Circuit observed that while neither Title VII nor the Federal Rules of Civil Procedure make provision for plaintiff to proceed anonymously, there are certain special circumstances in which that technique has been allowed. “[W]here the issues involved are matters of highly sensitive and highly personal nature,” such as birth control, abortion, homosexuality or the welfare rights of illegitimate children or abandoned families, the normal practice of disclosing any parties’ identities yields “to a policy of protecting privacy in a very private matter.” Wynne & Jaffe, 599 F.2d at 712 (quoting Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974) (footnotes omitted). The court went on to note certain common characteristics in cases affording plaintiffs anonymity. The plaintiffs in those actions ... divulged personal information of the utmost intimacy; many also had to admit that they either had violated state laws or government regulations or wished to engage in prohibited conduct____ Furthermore, all ... were challenging the constitutional, statutory or regulatory validity of government activity. Wynne & Jaffe, 599 F.2d at 713. The Fifth Circuit has since made it clear that the common characteristics noted in Wynne & Jaffe need not each be present in order for a plaintiff to be allowed to proceed anonomously, but they do “deserve considerable weight" }, { "docid": "17638505", "title": "", "text": "pleadings to “proteet[ ] the public’s legitimate interest in knowing all of the facts involved, including the identities of the parties.” Doe v. Frank, 951 F.2d 320, 322 (11th Cir.1992). “Basic fairness dictates that those among the defendants’ accusers who wish to participate ... as individual party plaintiffs must do so under their real names.” Southern Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir.1979). Although it is within the discretion of the district court to grant the “rare dispensation” of anonymity against the world (but not the plaintiff), even in that situation the court has “a judicial duty to inquire into the circumstances of particular eases to determine whether the dispensation is warranted.” James v. Jacobson, 6 F.3d 233, 238 (4th Cir.1993). As part of this inquiry, the court should take into account the risk of unfairness to the opposing party, Wynne & Jaffe, 599 F.2d at 713, as well the “customary and constitutionally-embedded presumption of openness in judicial proceedings.” Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.1981). Nor are we aware of any case in which an amicus — a friend of the court — has been permitted to remain anonymous. One might think that such a situation would be a contradiction in terms. But these amici are in any event apparent adversaries of Microsoft, so they should be no more entitled to proceed anonymously than if they were plaintiffs. Here, the district judge accepted the Doe Companies’ claims of fear of retaliation from Microsoft, without inquiry and apparently with no consideration of what an extraordinary break with precedent such an action implied. See Opinion, 159 F.R.D. at 329. The judge did not fulfill his duty to consider the impact of anonymity on the public interest in knowing the identities of the participants in this proceeding, nor did he consider possible unfairness to Microsoft. The language of the Tunney Act relied upon by the district judge — which permits a district court to authorize “participation in any other manner and extent which serves the public interest,” 15 U.S.C. §" }, { "docid": "19022611", "title": "", "text": "has conceded that the press has known her name for some time. Indeed, plaintiff makes it clear that the press has been aware of both her residence and her place of employment. Hence, her identity is not unknown. Plaintiffs allegation that she has been subjected to death threats would provide a legitimate basis for allowing her to proceed anonymously. Plaintiff has not, however, provided any details, nor has she explained how or why the use of her real name in court papers would lead to harm, since those who presumably would have any animosity toward her already know her true identity. See Hallock, 119 F.R.D. at 644 (“the source of any harassment apparently is already aware of plaintiffs identity, and there is little reason to believe that disclosure of her identity in this lawsuit would serve to increase the number of such incidents”). Thus, plaintiff simply has not shown that she is entitled to proceed under a pseudonym in this action. It may be, as plaintiff suggests, that victims of sexual assault will be deterred from seeking relief through civil suits if they are not permitted to proceed under a pseudonym. That would be an unfortunate result. For the reasons discussed above, however, plaintiff and others like her must seek vindication of their rights publicly. Accordingly, plaintiffs objection to defendants’ filing of papers disclosing her name is overruled. Defendants may file papers that identify plaintiff. So that plaintiff may have an opportunity to review her options, however, the return date for Shakur’s motion to vacate the entry of default is adjourned until February 2, 1996 and any papers filed with the Court before then shall refer to plaintiff only as “Jane Doe.” SO ORDERED. . Whether the defendant is a governmental entity or a private defendant is significant because governmental bodies do not share the concerns about \"reputation” that private individuals have when they are publicly charged with wrongdoing. See Southern Methodist Univ. Ass'n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979)." }, { "docid": "17638504", "title": "", "text": "week. We don’t want to come back and sue you every Monday and Tuesday. You ought to clean up this mess. They’ve got 50 lawyers there. They can make sure that they’re doing it. MS. BINGAMAN: Here’s the answer, Your Honor. If I had a case that I could file today on those practices, I would file it. I’ve said that repeatedly. THE COURT: Well, I know, but you don’t have to have a case. The book’s allegations are, of course, not evidence on which a judge is entitled to rely, nor are those unsworn allegations even grounds upon which to interrogate the government about its position with respect to those allegations. We are similarly distressed by the district judge’s decision to allow the Doe Companies to proceed anonymously. We are not aware of any case in which a plaintiff was allowed to sue a defendant and still remain anonymous to that defendant. Such proceedings would, as Microsoft argues, seriously implicate due process. Indeed, parties to a lawsuit must typically openly identify themselves in their pleadings to “proteet[ ] the public’s legitimate interest in knowing all of the facts involved, including the identities of the parties.” Doe v. Frank, 951 F.2d 320, 322 (11th Cir.1992). “Basic fairness dictates that those among the defendants’ accusers who wish to participate ... as individual party plaintiffs must do so under their real names.” Southern Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir.1979). Although it is within the discretion of the district court to grant the “rare dispensation” of anonymity against the world (but not the plaintiff), even in that situation the court has “a judicial duty to inquire into the circumstances of particular eases to determine whether the dispensation is warranted.” James v. Jacobson, 6 F.3d 233, 238 (4th Cir.1993). As part of this inquiry, the court should take into account the risk of unfairness to the opposing party, Wynne & Jaffe, 599 F.2d at 713, as well the “customary and constitutionally-embedded presumption of openness in judicial proceedings.” Doe v. Stegall, 653 F.2d 180," } ]

[ { "docid": "22636195", "title": "", "text": "“The state interests at stake in this proceeding differ in both kind and degree” from the cases in which the Court has held Younger abstention appropriate. 784 F. 2d 1133, 1149 (CA2 1986). As Justice BRENNAN’s analysis points out, ante, at 19-21, the issue whether “proceedings implicate important state interests” is quite distinct from the question whether there is an ongoing proceeding. See Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U. S. 423, 432 (1982). Although we have often wrestled with deciding whether a particular exercise of state enforcement power implicates an “important state interest,” see Younger v. Harris, 401 U. S. 37 (1971) (criminal statute); Huffman v. Pursue, Ltd., 420 U. S. 592 (1975) (obscenity regulation); Juidice v. Vail, 430 U. S. 327 (1977) (contempt proceedings); Trainor v. Hernandez, 431 U. S. 434 (1977) (welfare fraud action); Moore v. Sims, 442 U. S. 415 (1979) (child abuse regulation); Middlesex County Ethics Comm., supra, (bar disciplinary proceedings); Ohio Civil Rights Comm. v. Dayton Christian Schools, Inc., 477 U. S. 619 (1986) (antidiscrimination laws), we have invariably required that the State have a substantive interest in the ongoing proceeding, an interest that goes beyond its interest as adjudicator of wholly private disputes. By abandoning this critical limitation, the Court cuts the Younger doctrine adrift from its original doctrinal moorings which dealt with the States’ interest in enforcing their criminal laws, and the federal courts’ longstanding reluctance to interfere with such proceedings. See Huffman, supra, at 604. For the reasons stated by Justice BRENNAN, ante, at 21, and Justice Scalia, ante, at 18, I do not believe that the doctrine described in District of Columbia Court of Appeals v. Feldman, 460 U. S. 462 (1983), and Rooker v. Fidelity Trust Co., 263 U. S. 413 (1923), bars the federal courts from considering Texaco’s claims. See generally Feldman, supra, at 490 (Stevens, J., dissenting). In Marine Cooks and Stewards v. Arnold, 348 U. S. 37, 42-43 (1954), the Court stated: “Here the petitioner has had its day in court. The dismissal has cut off only a statutory right of review" } ]

[ { "docid": "15912610", "title": "", "text": "Conrad, 350 N.W.2d 580, 585 (N.D.1984). No duplication will result if this court does not abstain since there has been no trial, nor a record on the constitutional issues asserted. More importantly, the Court in Huffman expressly states that its decision is not intended to affect those cases wherein the Court has determined that a federal equity plaintiff challenging state administrative action need not have exhausted his state judicial remedies before seeking federal relief. Id. at 610 n. 21. The case at bar is further distinguishable from Dayton and other cases wherein the Court found abstention appropriate. In most of the cases in which the Supreme Court has applied the Younger doctrine, either administrative or disciplinary proceedings were still pending, See Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (while administrative proceedings were still pending, Dayton filed action in federal court); Middlesex County Ethics Committee v. Garden, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (attorney discipline proceedings initiated by local ethics committee but not resolved within state procedure for disciplining attorneys prior to filing of federal complaint); or the state’s judicial process had been initiated, See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (state criminal trial was actually being prosecuted when federal complaint filed); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482, reh’g denied 421 U.S. 971, 95 S.Ct. 1969, 44 L.Ed.2d 463 (1975) (federal complaint was filed rather than appealing an adverse decision from Court of Common Pleas); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (federal action filed after appellees were found in contempt of court for failing to satisfy state court judgment); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed. 2d 994 (1979) (child custody proceedings pending in state court); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (state attachment and execution proceedings pending in state court at time federal complaint filed); Pennzoil v. Texaco, Inc., 481 U.S. 1, 107" }, { "docid": "12429682", "title": "", "text": "to the Sinclair case, and the Rooker-Feldman doctrine does not bar this Court’s exercise of jurisdiction. B. Younger Abstention 1. Standard of Review In Younger v. Harris, 401 U.S. 37, 41, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that a federal court could not enjoin state criminal proceedings enforcing state law on the ground that the underlying state law was unconstitutional. See also Samuels v. Mackell, 401 U.S. 66, 69, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) (holding that Younger applies to declaratory judgments). The Court soon expanded the Younger holding to prohibit federal injunctions of certain civil proceedings which were quasi-criminal or in aid of state courts’ authority to enforce their orders. See, e.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 604-05, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (applying Younger to state nuisance proceedings); Juidice v. Vail, 430 U.S. 327, 334-36, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (applying Younger to contempt proceedings); Trainor v. Hernandez, 431 U.S. 434, 444-46, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (applying Younger to state civil enforcement proceedings to recover fraudulently-obtained welfare payments). Subsequently, in Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), the Court ruled that district courts should only abstain under Younger if: (1) there are ongoing state proceedings of a judicial nature; (2) these proceedings implicate important state interests; and (3) the state proceedings offer adequate opportunity to raise federal claims. See also Addiction Specialists, Inc. v. Township of Hampton, 411 F.3d 399, 408 (3d Cir.2005) (applying the three-prong test of Middlesex County). In Pennzoil v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987), however, the Court cautioned that it did “not hold that Younger abstention is always appropriate whenever a civil proceeding is pending in a state court. Rather ... we rely on the State’s interest in protecting ‘the authority of the judicial system, so that its orders and judgments are not rendered nugatory.’ ” Id. at 14 n. 12, 107 S.Ct. 1519 (citation omitted). Amplifying these limitations," }, { "docid": "16181890", "title": "", "text": "The doctrine of Younger abstention, which reflects the principle of comity inherent in our federal system of government, provides much stronger support for abstention in this case. In Younger, the Supreme Court held that a district court erred in enjoining a state criminal prosecution when the plaintiffs federal claim could also have been raised as a defense in the state prosecution. Younger, 401 U.S. at 53-54, 91 S.Ct. 746. In so ruling, the Court specifically noted the absence of any evidence of “bad faith, harassment, or any other unusual circumstance that would call for equitable relief.” Id. at 54, 91 S.Ct. 746. It also suggested that abstention might not be appropriate if the statute the state was seeking to enforce was “flagrantly and patently violative of express constitutional prohibitions.” Id. at 53, 91 S.Ct. 746. The Supreme Court has extended Younger to forbid the injunction of certain state civil enforcement actions. In Huffman v. Pursue, Ltd., 420 U.S. 592, 594, 603-5, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), the Court held that Younger applied to a federal action that sought to interfere with a state civil proceeding to abate the showing of obscene movies. In Trainor v. Hernandez, 431 U.S. 434, 447, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977), the Court ruled that Younger prevented a district court from enjoining an allegedly unconstitutional civil action brought by a state to recover fraudulently obtained welfare payments. As the Court later explained, “[t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved.” Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). We have also applied Younger outside the context of state criminal prosecutions. In Fuller v. Ulland, 76 F.3d 957 (8th Cir.1996), we explained that “Younger directs federal courts to abstain from hearing cases when (1) there is an ongoing state judicial proceeding which (2) implicates important state interests, and when (3) that proceeding affords an adequate opportunity to raise the federal questions presented.” Fuller, 76 F.3d at 959. In this case, the action" }, { "docid": "7763633", "title": "", "text": "1911, 52 L.Ed.2d 486 (1977) (civil proceedings seeking return of welfare payments wrongfully received); Juidice v. Vail, 430 U.S. 327, 335-36 & n. 12, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (civil contempt proceedings); Huffman, 420 U.S. at 604, 95 S.Ct. 1200 (state court action to close adult theater); Majors v. Engelbrecht, 149 F.3d 709, 712-13 (7th Cir.1998) (nursing license suspension proceedings before state administra-five board). Younger is still “appropriate only when there is [a state judicial or administrative] action against the federal plaintiff and the state is seeking to enforce the contested law in that proceeding.” Forty One News, Inc. v. County of Lake, 491 F.3d 662, 665 (7th Cir.2007). In the pending state eviction actions, SKS is not a target of any effort to enforce state law. It is not even a defendant. Therefore, Younger abstention as we currently understand it does not completely fit here. Yet the Younger doctrine is instructive here because this case implicates the same principles of equity, comity, and federalism that provide the foundation for Younger to such an extent that the federal courts must abstain here. The Supreme Court has explained that Younger abstention is rooted in the traditional principles of equity, comity, and federalism: [Younger’s] far-from-novel holding was based partly on traditional principles of equity, but rested primarily on the “even more vital consideration” of comity. As we explained, this includes “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.” New Orleans Public Service, Inc., 491 U.S. at 364, 109 S.Ct. 2506, quoting Younger, 401 U.S. at 43-44, 91 S.Ct. 746 (internal citations omitted). “[T]he principles of equity, comity, and federalism ... must restrain a federal court when asked to enjoin a state court proceeding.” Mitchum v. Foster, 407 U.S. 225, 243, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) (discussing Younger and companion cases)." }, { "docid": "11250614", "title": "", "text": "extended the holding in Younger to prevent federal courts from issuing declaratory judgments regarding state statutes that are subject to ongoing state criminal prosecutions. Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 431 n. 10, 102 S.Ct. 2515, 2521 n. 10, 73 L.Ed.2d 116 (1982). The contours of the Younger doctrine have since been steadily expanded to encompass pending quasi-criminal and civil judicial and administrative proceedings that implicate important state interests and provide a forum competent to vindicate constitutional challenges to those proceedings. See, e.g., Pennzoil Company v. Texaco, Inc., 481 U.S. 1, 10-11, 107 S.Ct. 1519, 1525-26, 95 L.Ed.2d 1 (1987). In Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (civil nuisance proceeding), the Supreme Court extended Younger abstention principles to include state-initiated civil proceedings in aid of and closely related to state criminal statutes. In Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (civil contempt order), the Court applied the Younger abstention doctrine to important state civil actions that may be analogous to criminal proceedings but that are not intricately bound up with the state’s criminal statutes, and in Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (civil attachment proceeding), the Court confirmed that Younger is not confined to the criminal context but applies also to civil actions brought by the state to vindicate important state policies. In Middlesex, 457 U.S. at 423, 102 S.Ct. at 2515, the Court held definitively that Younger policies are fully applicable to state civil judicial proceedings when important state interests are involved, and in Pennzoil, 481 U.S. at 1, 107 S.Ct. at 1519, the Court held the implication of important court interests factor to be controlling for Younger abstention purposes where the state was not even a party to the state proceeding (but where the state plaintiff was a private party acting as a state actor). Lemon v. Tucker, 664 F.Supp. 1143, 1146 (N.D.Ill.1987). In Middlesex, 457 U.S. at 432-33, 102 S.Ct. at 2521-22, the Court also ruled that administrative proceedings that" }, { "docid": "18789572", "title": "", "text": "examplars. Judge Brotman, the district court judge, issued his opinion denying plaintiffs’ request for a preliminary injunction and dismissing the action under Younger on August 6, 1985. After a timely appeal was filed, plaintiffs - DeSantis and Monaghan were subpoenaed to appear at the Trenton Criminal Justice Complex, where they were informed on December 30, 1985 that they are targets of the state grand jury investigation. II. In Younger, the Supreme Court held that, absent special circumstances, a federal court should abstain from enjoining or interfering with a pending state criminal prosecution. The holding was based upon the rationale that federal-court interference with pending state proceedings is inconsistent with the principles of federalism and comity, which reflect “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the national government will fare best if the states and their institutions are left free to perform their separate functions in their separate ways.” 401 U.S. at 44, 91 S.Ct. at 750. The abstention doctrine has been expanded considerably over the years since Younger was decided. See, e.g., Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (applying absention to state bar disciplinary proceedings); Trainor v. Hernandez, 431 U.S. 434 (1977) (applying abstention in favor of a civil action by the state to recover wrongfully-obtained welfare benefits); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (applying abstention where federal plaintiff is involved in state court contempt proceedings as judgment debtor); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (applying abstention in deference to civil nuisance action brought by county officials against theatres showing pornographic film). Most recently, the Supreme Court in Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., — U.S. —, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), held that the federal courts must abstain from adjudicating employment discrimination claims that are pending in state administrative tribunals. “[T]he" }, { "docid": "11097103", "title": "", "text": "for an injunction pursuant to 42 U.S.C. § 1983 fell squarely within the parameters of the Younger decision. However, in 1986, when the district court considered the question of whether the Clubs’ suit should be dismissed pursuant to Younger, the court expressed uncertainty as to whether Younger abstention should be applied to state administrative proceedings initiated by a private plaintiff. At that time, the Supreme Court had extended the Younger doctrine to civil proceedings initiated by the state in a state court in which important state interests were involved. See Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). The Court had also applied Younger to state administrative proceedings initiated by the state in which important state interests were vindicated. See Middlesex County Ethics Committee v. Garden State Bar Assoc., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). Only after the district court first considered this case in 1986 did the Supreme Court consider the question of whether Younger abstention applied to administrative proceedings initiated by a private plaintiff In Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), a case factually similar to the one at bar, the state administrative proceedings were initiated by a private litigant filing a sex discrimination complaint with the Ohio Civil Rights Commission. Although the administrative proceedings were pending, Dayton (the defendant in the state proceedings), filed suit in federal court seeking an injunction against the state proceedings on the ground that any investigation or imposition of sanctions would violate the first amendment. The Court held that it should abstain under Younger because “the elimination of prohibited sex discrimination is a sufficiently important state interest to bring the present case within [Younger and its progeny]\"" }, { "docid": "18744606", "title": "", "text": "long as the parties may raise their federal defenses in the state proceedings. Younger, 401 U.S. at 43, 91 S.Ct. at 750. It is based upon considerations of equitable restraint, which require that a federal court not interfere with state judicial proceedings unless there is a threat of irreparable injury with no adequate remedy at law, Younger at 43, and considerations of comity and federalism, which counsel respect for both state enforcement of state laws and the ability of state courts to give proper attention to federal law defenses. Middlesex, 457 U.S. at 431, 102 S.Ct. at 2521. Although Younger abstention was initially limited to state criminal proceedings, 401 U.S. at 45-49, 91 S.Ct. at 751-53, the district court found that the Supreme Court has since abandoned any limitation of Younger abstention to criminal prosecutions or proceedings “in aid of and closely related to criminal statutes,” Huffman v. Pursue, Ltd., 420 U.S. 592, 604, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 (1975). It relied on such cases as Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (abstention from state statutory contempt proceedings), Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (abstention in civil welfare fraud action), Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (abstention from state disciplinary proceeding against lawyer), and Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (abstention from proceedings to remove children from abusive parents). The district court held that Younger abstention would be appropriate with regard to the civil enforcement action initiated by the State if the requirements set out in Middlesex, 457 U.S. at 432, 102 S.Ct. at 2521, were met. The district court parsed the Middlesex test as follows: the state proceedings must be judicial proceedings, the proceedings must implicate important state interests, and there must be an adequate opportunity to raise federal defenses in the state proceedings. With regard to the proceeding in the Maine Superior Court, the district court held that even though it had" }, { "docid": "23292718", "title": "", "text": "37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Younger held that abstention was required where a plaintiff who was defending criminal charges in state court sought to get the federal court to enjoin the ongoing state criminal proceedings. Id. at 53-54, 91 S.Ct. 746. Younger is grounded in notions of comity: the idea that the state courts should not, in certain circumstances,- be interfered with. See Huffman v. Pursue, Ltd., 420 U.S. 592, 601, 603-04, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). For at least two reasons, the abstention principle announced in Younger does not apply to this case. First, the ongoing state proceeding involved here is not the proper type of proceeding to require adherence to Younger principles. Younger itself occurred within the context of a criminal state proceeding. It has expanded beyond that context, however. “[C]ertain types of state civil proceedings” are also subject to Younger abstention. Quackenbush, 517 U.S. at 716-17, 116 S.Ct. 1712. The Supreme Court has extended abstention to two types of state civil actions. See NOPSI, 491 U.S. at 367-68, 109 S.Ct. 2506. First and most importantly, Younger has been extended to some quasi-criminal (or at least “coercive”) state civil proceedings — and even administrative proceedings — brought by the state as enforcement actions against an individual. Maymo-Melendez v. Alvarez-Ramirez, 364 F.3d 27, 31-32, 34 (1st Cir.2004) (applying Younger principles to state administrative disciplinary proceeding of horse trainer); see, e.g., Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 434-35, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (Younger abstention appropriate where plaintiff sought to enjoin ongoing state administrative attorney disciplinary proceedings); Moore v. Sims, 442 U.S. 415,- 423, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (Younger abstention appropriate in context of state child removal proceedings due to allegations of child abuse); Trainor v. Hernandez, 431 U.S: 434, 444, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (Younger applies to state proceeding to recover fraudulently obtained welfare payments); Huffman, 420 U.S. at 603-05, 95 S.Ct. 1200 (Younger abstention appropriate where plaintiff challenged ongoing state civil nuisance proceedings); Esso Standard Oil Co., 389" }, { "docid": "10072830", "title": "", "text": "the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of States. Id. at 44, 91 S.Ct. at 750-51. Although Younger dealt with an injunction against a state criminal proceeding, it has since been recognized that the concern for comity and federalism is equally applicable to certain civil proceedings in which important state interests are implicated. Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (administrative civil rights proceeding); Middlesex County Ethics Committee v. Garden State Bar Ass’n., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (state bar disciplinary hearing); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (state nuisance action); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (civil contempt proceeding); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (state welfare proceeding); Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979) (child custody proceeding). Thus, the fact that this is a civil proceeding does not necessarily bar the application of the Younger doctrine. The Younger doctrine is properly raised in a motion to dismiss for failure to state a claim upon which relief can be granted, Kitchens v. Bowen, 825 F.2d 1337, 1339 (9th Cir.1987). Where the doctrine is applicable, abstention is required if: (1) there are pending state judicial proceedings; (2) the state proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to raise federal questions. Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982); Fresh International Corp. v. Agricultural Labor Relations Board, 805 F.2d 1353, 1357-8 (9th Cir.1986). When these criteria are met, “a district court must dismiss the federal action ... [and] there is no discretion to grant injunctive relief.” Juidice v. Vail, 430 U.S. 327, 337, 97 S.Ct. 1211, 1218, 51" }, { "docid": "18764667", "title": "", "text": "express constitutional prohibitions. Younger, 401 U.S. at 53-54, 91 S.Ct. at 754-55; accord, Huffman v. Pursue, Ltd., 420 U.S. 592, 611, 95 S.Ct. 1200, 1211, 43 L.Ed.2d 482 (1975). Proceeding on the assumption that an injunction of the state court action in this case would be appropriate only if this case came within one of the narrow exceptions to the Younger doctrine, the district court found that Appellants had engaged in harassment and bad faith sufficient to justify issuance of an injunction. We need not reach the issue of whether the district court was correct in its determination that Appellants’ actions amounted to bad faith and harassment because we find that the Younger doctrine is not applicable on the facts of this case. As discussed above, Younger v. Harris dealt with the propriety of a federal injunction against ongoing state criminal proceedings. In the civil context, the comity principles embodied in the Younger doctrine have been held applicable when “the State’s interests in the proceeding are so important that exercise of the federal judicial power would disregard the comity between the States and the National Government.” Pennzoil Co. v. Texaco, Inc., — U.S. -, -, 107 S.Ct. 1519, 1526, 95 L.Ed.2d 1 (1987). See, e.g., id. 107 S.Ct. at 1527 (state interest in execution of state judgments); Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., — U.S. -, -, 106 S.Ct. 2718, 2723, 91 L.Ed.2d 512 (1986) (state civil rights commission action to vindicate state interest in elimination of sex discrimination); Middlesex County Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 434, 102 S.Ct. 2515, 2522, 73 L.Ed.2d 116 (1982) (important state interest in maintaining and assuring the professional conduct of attorneys it licenses); Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979) (child custody proceedings “in aid of and closely related to criminal statutes”); Juidice v. Vail, 430 U.S. 327, 335-36, 97 S.Ct. 1211, 1217, 51 L.Ed.2d 376 (1977) (vital state concern in enforcement of contempt proceedings); Trainor v. Hernandez, 431 U.S. 434, 444, 97 S.Ct. 1911, 1918, 52 L.Ed.2d" }, { "docid": "9421434", "title": "", "text": "fashioned an abstention doctrine preventing federal courts from interfering with state criminal proceedings, even if there is an allegation of a federal constitutional violation. Younger abstention has been extended to civil proceedings where important state interests are involved. Huffman v. Pursue, 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975): Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982). In Huffman, state officials instituted a civil nuisance proceeding against an adult theater under an Ohio statute which made the exhibition of obscene films a nuisance. The state prevailed in the trial court and obtained an injunction. Rather than appealing the judgment, the theater owner filed a suit in federal court under 42 U.S.C. § 1983 seeking declaratory and injunctive relief. The Supreme Court held that the lower federal courts were required to abstain under Younger. The court reasoned that the state’s nuisance proceeding was “more akin to a criminal prosecution than are most civil cases.” Id. at 604, 95 S.Ct. at 1208. In Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977), the Supreme Court clarified that Younger abstention applies to all civil cases in which the state is a party. The Supreme Court has further explained that abstention is appropriate when the state is a party or when important state interests are at stake and so long as the state system provides an opportunity to adjudicate federal constitutional claims. Moore v. Sims, 442 U.S. 415, 423-26, 99 S.Ct. 2371, 2377-79, 60 L.Ed.2d 994 (1979). In determining whether a federal court should abstain on Younger grounds, the court must examine: (1) the nature of the state proceedings in order to determine whether the proceedings implicate important state interests, (2) the timing of the request for federal relief in order to determine whether there are ongoing state proceedings, and (3) the ability of the federal plaintiff to litigate its federal constitutional claims in the state proceedings. Kenneally v. Lungren, 967 F.2d 329, 331-32 (9th Cir.1992) (citing Middlesex, 457 U.S. 423, 102 S.Ct. 2515), cert." }, { "docid": "18789573", "title": "", "text": "at 44, 91 S.Ct. at 750. The abstention doctrine has been expanded considerably over the years since Younger was decided. See, e.g., Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (applying absention to state bar disciplinary proceedings); Trainor v. Hernandez, 431 U.S. 434 (1977) (applying abstention in favor of a civil action by the state to recover wrongfully-obtained welfare benefits); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (applying abstention where federal plaintiff is involved in state court contempt proceedings as judgment debtor); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (applying abstention in deference to civil nuisance action brought by county officials against theatres showing pornographic film). Most recently, the Supreme Court in Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., — U.S. —, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), held that the federal courts must abstain from adjudicating employment discrimination claims that are pending in state administrative tribunals. “[T]he proper respect for the fundamental role of states in our federal system,” id. at—, 106 S.Ct. 2723, the Court held, dictates that states should not be enjoined from vindicating important interests in state judicial or administrative proceedings. Id. In his opinion for the Court, Justice Rehnquist emphasized that even if the administrative pro ceedings would not provide a forum for resolution of constitutional claims, state judicial review of any agency decision would be sufficient for protection of any constitutional interests. Id. at —, 106 S.Ct. at 2723-24. The “strong policies counseling against the exercise of [federal] jurisdiction where particular kinds of state proceedings have already been commenced”, id. at —, 106 S.Ct. at 2722, are also controlling in this case, where pending state criminal proceedings undeniably present the important state interests at issue in Younger and its progeny. The district court quite properly abstained in favor of the New Jersey state courts in deference to the principles of federalism and comity that are central to our federal union. In Middlesex County Ethics Committee, 457 U.S." }, { "docid": "15912605", "title": "", "text": "same concerns are prevalent in civil proceedings when important state interests are involved thus warranting federal abstention. See e.g. Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed. 2d 482, reh’g denied 421 U.S. 971, 95 S.Ct. 1969, 44 L.Ed.2d 463 (1975) (federal defendants filed complaint in federal court from adverse state court decision rather than appealing to state appellate courts); Middlesex County Ethics Committee v. Garden, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed. 2d 116 (1982) (attorney disciplinary proceedings); Pennzoil Co. v. Texaco, 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (enforcement of state court judgment); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (state attachment and execution proceedings); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (state contempt proceedings); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (child-custody proceedings). The Court has also found Younger applicable to pending state administrative proceedings. See Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973) and Ohio Civ. Rights Commission v. Dayton Christian Schools, 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986). The Defendant asserts that the Court’s holding in Dayton and preceding Supreme Court decisions dictate that this court abstain from hearing the case. In Dayton, an employee of the Dayton Christian Schools filed a complaint with the Ohio Civil Rights Commission alleging sexual discrimination. Ohio Civ. Rights Commission v. Dayton Christian School, 477 U.S. 619, 106 S.Ct. 2718, 2721, 91 L.Ed.2d 512 (1986). Following a preliminary investigation, the Commission found probable cause to believe that Dayton had discriminated against the employee on the basis of sex. Id. When Dayton failed to take corrective measures, the Commission initiated administrative proceedings against Dayton. Id. While the administrative proceedings were still pending Dayton filed a 1983 action in federal court seeking to enjoin the Ohio Civil Rights Commission from proceeding with the administrative hearings. Id. 106 S.Ct. at 2721-22. Ruling on the abstention doctrine, the Court concluded that Younger and its progeny are applicable to state" }, { "docid": "7937148", "title": "", "text": "to entertain Doulamis’ charge of sexual discrimination based on her employer’s alleged interference with her union activities. International Union of Operating Engineers v. Jones, 460 U.S. 669, 674, 103 S.Ct. 1453, 1457-58, 75 L.Ed.2d 368 (1983). B. Abstention We turn now to what is in essence the threshold issue in this appeal — whether the district court erred in abstaining under the Younger doctrine. In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that a federal court should not enjoin a pending state criminal proceeding except in the very unusual situation that an injunction is necessary to prevent great and immediate irreparable injury. Younger stands for the proposition that principles of comity require “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States are left free to perform their separate functions in their separate ways.” Id. at 44, 91 S.Ct. at 750-51. The Court has since applied its reasoning in Younger to civil proceedings in which important state interests are involved. See Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Trainor v. Hernández, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977). In Ohio Civil Rights Comm’n v. Dayton Christian Schools, 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), the principles of comity first announced in Younger were made extensive to state administrative proceedings. As a result, where (1) vital state interests are involved, (2) in an ongoing state judicial (or administrative) proceeding, a federal court should abstain from exercising its jurisdiction over a claim, (3) unless state law clearly bars the interposition of the constitutional claims. See Middlesex County Ethics Comm. v. Garden State Bar Assn. 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371," }, { "docid": "7763632", "title": "", "text": "requires federal courts to abstain when a criminal defendant seeks a federal injunction to block his state court prosecution on federal constitutional grounds. See 401 U.S. at 53-54, 91 S.Ct. 746. While the Supreme Court has extended Younger to civil proceedings, beginning with Huffman v. Pursue, Ltd., 420 U.S. 592, 603-604, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), it has done so only in limited circumstances. The civil brand of Younger extends only to a federal suit filed by a party that is the target of state court or administrative proceedings in which the state’s interests are so important that exercise of federal judicial power over those proceedings would disregard the comity between the states and federal government. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (requirement for the posting of bond pending appeal); Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 432-34, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (attorney disciplinary proceedings); Trainor v. Hernandez, 431 U.S. 434, 444, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (civil proceedings seeking return of welfare payments wrongfully received); Juidice v. Vail, 430 U.S. 327, 335-36 & n. 12, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (civil contempt proceedings); Huffman, 420 U.S. at 604, 95 S.Ct. 1200 (state court action to close adult theater); Majors v. Engelbrecht, 149 F.3d 709, 712-13 (7th Cir.1998) (nursing license suspension proceedings before state administra-five board). Younger is still “appropriate only when there is [a state judicial or administrative] action against the federal plaintiff and the state is seeking to enforce the contested law in that proceeding.” Forty One News, Inc. v. County of Lake, 491 F.3d 662, 665 (7th Cir.2007). In the pending state eviction actions, SKS is not a target of any effort to enforce state law. It is not even a defendant. Therefore, Younger abstention as we currently understand it does not completely fit here. Yet the Younger doctrine is instructive here because this case implicates the same principles of equity, comity, and federalism that provide the foundation for Younger to such" }, { "docid": "10072829", "title": "", "text": "recognized that there are circumstances wherein it may be appropriate for a federal court to defer to a pending state court proceeding. One such circumstance is addressed in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In Younger, the Supreme Court held that “abstention is appropriate where, absent bad faith, harassment, or a patently invalid state statute, federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings.” Colorado River, supra 424 U.S. at 816, 96 S.Ct. at 1245. Younger’s result was justified, in part, by the Court’s considerations of comity and “a proper respect for state functions.” Younger, 401 U.S. at 44, 91 S.Ct. at 750. The concept does not mean blind deference to “States’ Rights” any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of States. Id. at 44, 91 S.Ct. at 750-51. Although Younger dealt with an injunction against a state criminal proceeding, it has since been recognized that the concern for comity and federalism is equally applicable to certain civil proceedings in which important state interests are implicated. Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (administrative civil rights proceeding); Middlesex County Ethics Committee v. Garden State Bar Ass’n., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (state bar disciplinary hearing); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (state nuisance action); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (civil contempt proceeding); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (state welfare proceeding); Moore" }, { "docid": "23292719", "title": "", "text": "367-68, 109 S.Ct. 2506. First and most importantly, Younger has been extended to some quasi-criminal (or at least “coercive”) state civil proceedings — and even administrative proceedings — brought by the state as enforcement actions against an individual. Maymo-Melendez v. Alvarez-Ramirez, 364 F.3d 27, 31-32, 34 (1st Cir.2004) (applying Younger principles to state administrative disciplinary proceeding of horse trainer); see, e.g., Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 434-35, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (Younger abstention appropriate where plaintiff sought to enjoin ongoing state administrative attorney disciplinary proceedings); Moore v. Sims, 442 U.S. 415,- 423, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (Younger abstention appropriate in context of state child removal proceedings due to allegations of child abuse); Trainor v. Hernandez, 431 U.S: 434, 444, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (Younger applies to state proceeding to recover fraudulently obtained welfare payments); Huffman, 420 U.S. at 603-05, 95 S.Ct. 1200 (Younger abstention appropriate where plaintiff challenged ongoing state civil nuisance proceedings); Esso Standard Oil Co., 389 F.3d at 217-18 (using Younger to require abstention in case where environmental board brought state administrative proceedings against gasoline station owner seeking to fine it). A second situation where Younger abstention has been seen as appropriate in civil cases is in those situations uniquely in furtherance of the fundamental workings of a state’s judicial system. Middlesex County, 457 U.S. at 432-33, 102 S.Ct. 2515; see Pennzoil, 481 U.S. 1, 13, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (Younger extends to challenge to post-judgment appeal bond); Juidice v. Vail, 430 U.S. 327, 335-36, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (Younger applies to state’s enforcement of civil contempt proceedings). It is unclear exactly how far this second rationale extends, although it is related to the coercion/enforcement rationale. Neither of the two core rationales that the Supreme Court has used in extending Younger to certain civil proceedings applies here. This is not an enforcement proceeding brought by the state or an agency against Loiza; in fact Loiza filed suit against the Secretary in order to force the" }, { "docid": "7763631", "title": "", "text": "that are the foundation for Younger abstention. The Younger doctrine requires federal courts to abstain from taking jurisdiction over federal constitutional claims that seek to interfere with or interrupt ongoing state proceedings. FreeEats.com, Inc. v. Indiana, 502 F.3d 590, 595 (7th Cir.2007) (reversing denial of Younger abstention and ordering dismissal of federal case). This case resembles the typical Younger abstention scenario in that it involves a claim that seeks equitable relief against state proceedings on federal constitutional grounds. SKS has come to federal court with a constitutional claim for equitable relief that seeks to compel the state court to manage pending state cases — petitions for residential eviction orders — in a particular way. While this case fits Younger to that extent, the established doctrine does not fit neatly here because SKS is a plaintiff in state court, not a defendant, and it seeks to protect its federal constitutional rights by having the federal courts speed up the state court proceedings, not stop them. The original core of Younger abstention — from Younger itself — requires federal courts to abstain when a criminal defendant seeks a federal injunction to block his state court prosecution on federal constitutional grounds. See 401 U.S. at 53-54, 91 S.Ct. 746. While the Supreme Court has extended Younger to civil proceedings, beginning with Huffman v. Pursue, Ltd., 420 U.S. 592, 603-604, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), it has done so only in limited circumstances. The civil brand of Younger extends only to a federal suit filed by a party that is the target of state court or administrative proceedings in which the state’s interests are so important that exercise of federal judicial power over those proceedings would disregard the comity between the states and federal government. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (requirement for the posting of bond pending appeal); Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 432-34, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (attorney disciplinary proceedings); Trainor v. Hernandez, 431 U.S. 434, 444, 97 S.Ct." }, { "docid": "8641330", "title": "", "text": "fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. 401 U.S. at 44, 91 S.Ct. at 750. The availability of federal review by means of a petition to the United States Supreme Court is a sufficient answer to the concern that there be a federal forum for adjudication of federal rights. Id. at 57 n. 3, 91 S.Ct. at 750 n. 3. (Brennan, J., concurring); cf. Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 150, 68 L.Ed. 362 (1923); Worldwide Church of God v. McNair, 805 F.2d 888, 890-91 (9th Cir.1986). While Younger abstention originated as a prohibition against interfering with state criminal proceedings, the doctrine evolved to apply to state civil proceedings as well. See, e.g., Middlesex County v. Garden State Bar Assoc., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (state bar disciplinary proceeding); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (state attachment proceeding); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (state contempt proceeding in a private debt claim); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (quasi-criminal proceeding concerning public nuisance statute). The Supreme Court has stated that the policies underlying Younger are fully applicable to noncriminal judicial proceedings when “important state interests are involved.” Middlesex, 457 U.S. at 432, 102 S.Ct. at 2521. In Middlesex, the Court established a three-step inquiry for determining when Younger abstention is appropriate in deference to a state civil proceeding: (1) is there an ongoing state proceeding; (2) does the proceeding implicate important state interests; and (3) is there an adequate opportunity in the state proceedings to raise constitutional challenges. Id. The parties here do not dispute that the first Middlesex test is satisfied. The California state court proceeding was filed before this federal lawsuit commenced. The fact that the" } ]

[ { "docid": "21533406", "title": "", "text": "when complaints filed with the Board of Appeals received consideration. So we find that in 1935 and 1936 the value was reduced to $1,530,000 and in 1937 to $1,380,000, which means that from 1928 through 1937 continual adjustments in the value cut it from $3,220,000 to $1,-380,000. In other words, during these years the assessor and the Board of Appeals in their discretion reduced the value of the debtor’s property $1,840,000, a reduction of 42 percent. This 42 percent reduction would seem to indicate that the assessor considered among other things the changed business conditions of that period. In fact, the complaints filed with, and favorably considered by, the Board of Appeals were premised on the logic that “income and expenses were not considered in determining the fair cash market value for tax purposes.” Section 64a provides that the court shall pass on the validity of taxes for the purpose of allowing or disallowing tax claims against the estate of the bankrupt. 11 U.S.C.A. § 104(a). In particular, this section authorizes the court to order the payment of “all taxes legally due and owing,” and empowers it to determine the “amount or legality” of any tax which might be questioned. We are convinced from our study of the matter, and the District Court so decided, that the court either operates under Section 64a by implication, 11 U.S.C.A. § 207(k), Cf. City of Springfield v. Hotel Charles Co., 1 Cir., 84 .F.2d 589, 591, or exercises the same power to pass upon similar tax claims from necessity. Settling the validity of tax claims in proceedings to reorganize corporate debtors is as necessary as in proceedings to liquidate corporate debtors, 11 U.S.C.A. § 207(k), or to liquidate individual bankrupts, 11 U.S. C.A. § 104(a). Much uncertainty exists in the cases as to the nature and extent of the power thus conferred upon the courts by the Bankruptcy Act. Dickinson v. Riley, 8 Cir., 86 F.2d 385, 387; In re Gould Mfg. Co., D.C., 11 F.Supp. 644. But of one conclusion we are confident. We believe, as did the District Court, that the" } ]

[ { "docid": "562878", "title": "", "text": "error in its assessment. Cf. In re 168 Adams Building Corporation, D.C., 27 F.Supp. 247, 249, 250, affirmed sub nom. Steinbrecher v. Toman, 7 Cir., 105 F.2d 704, certiorari denied 308 U.S. 623, 60 S.Ct. 378, 84 L.Ed. 520; In re Schach, D.C., 17 F.Supp. 437, 438, 439; In re Gould Mfg. Co., D.C., 11 F.Supp. 644, 649. In Lyford v. City of New York, 2 Cir., 137 F.2d 782, 786, the Court of Appeals for the Second Circuit said that ‘ * * * the effect of the Thompson case is, in any event, to restrict the court to finding if the tax is legally due and to deny it power to review the action of a quasi-judicial taxing body in setting, after due hearing, a valuation of property for tax purposes.’ And, again, in Re Hotel Martin Co. of Utica, D.C., 41 F.Supp. 392, 394, it was said that ‘The Arkansas case, supra, illustrates the law relative to real property assessments by state or local authorities, where the review of the assessments as provided by law was not taken.’ “The question in any instance, therefore, is whether the circumstances necessary to justify an exercise of bankruptcy’s power to redetermine a tax claim are present. We think they are in the instant case. The taxpayer having failed to file a return, the tax assessments against it were based upon estimated ‘settlements’ arbitrarily made by the State’s Department of Revenue without hearing the taxpayer.” In the instant case the time for objection to the assessment before the Board of Equalization had not expired at the time of the within bankruptcy proceeding. There had been no hearing, finding or final order on the tax at the time of bankruptcy and it therefore appears that the determination of the amount of tax may be had in those pending bankruptcy proceedings, and accordingly this Court determines that the objection to the jurisdiction should be overruled. It is so ordered." }, { "docid": "22837425", "title": "", "text": "the debtor’s petition was filed.” (Italics supplied.) Among the federal court decisions cited in briefs supporting the petition as bearing on the issue of inconsistency between § § 64 (a) and 77, either directly or indirectly, are the following: Lowden v. Northwestern National Bank & Trust Co., 298 U. S. 160, 164; In re Chicago, M., St. P. & P. R. Co., 27 F. Supp. 685; City of Springfield v. Hotel Charles Co., 84 F. 2d 589; In re A. V. Manning’s Sons, 16 F. Supp. 932; In re New York, O. & W. Ry. Co., 25 F. Supp. 709; Texas Co. v. Blue Way Lines, 93 F. 2d 593; Henderson County v. Wilkins, 43 F. 2d 670. And see Finletter, The Law of Bankruptcy Reorganization (1939) pp. 343-344. Ark. Dig. Stats. (Pope, 1937) § 1930. Id., §§ 1930-2128. Id., § £042. 7&, § 2019. Id., § 2020. Id., § 2044. Among the lower federal court decisions discussing the power of bankruptcy courts under § 64 (a) (4) are: In re Gould Mfg. Co., 11 F. Supp. 644; In re 168 Adams Building Corp., 27 F. Supp. 247, affirmed, 105 F. 2d 704; In re Schach, 17 F. Supp. 437, 439; In re Lang Body Co., 92 F. 2d 338; Henderson County v. Wilkins, 43 F. 2d 670. In advancing this argument counsel called attention to the case of People’s Investment Co. v. State Board of Assessors, 66 N. J. L. 175; 48 A. 579, in which the Court had said that it was beyond the jurisdiction of the tax agent to levy a. tax on any but the outstanding capital stock.- Counsel also relied on Arimex Copper Co. v. State Board of Assessors, 69 N. J. L. 121; 54 A. 244. E. g., Nashville, C. & St. L. Ry. v. Browning, 310 U. S. 362, 370; Rowley v. Chicago & N, W. Ry. Co., 293 U. S. 102, 109, and cases cited. Boteler v. Ingels, 308 U. S. 57, 61; Healy v. Ratta, 292 U. S. 263, 270; Pennsylvania v. Williams, 294 U. S. 176, 185. Cf. Bankruptcy Act" }, { "docid": "562872", "title": "", "text": "be desired. The prohibition of rehearing, re-examination, etc. was quite proper in an orderly judicial process where the issue had been ascertained by a proper body or agency having the power to hold hearings on notice, require the production of witnesses and the power to make ultimate findings and order on the tax, subject only to the right of appeal, and thus bind all parties. The minimum requirement apparently would be a determination by a quasi-judicial body in conjunction with a quasi-judicial hearing, or at least tile right to such hearing. The Second Circuit in a well-reasoned case, Lyford v. State of New York, 2 Cir., 137 F.2d 782, 784, discusses its view of the condition of the law following the Supreme Court’s decision in the Arkansas case: “Prior to the decision of Arkansas Corporation Commission v. Thompson, 313 U.S. 132, 61 S.Ct. 888, 85 L.Ed. 1244, the great majority of the decisions had upheld a wide power in the bankruptcy court to review and redetermine local taxes under § 64, sub. a or its predecessor. These cases relied in substance upon State of New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 51 L.Ed. 284, where such a redetermination by the bankruptcy court of a New Jersey tax had been upheld. See 3 Collier, op.cit. supra, pp. 2145, 2146, and citations; and cf. Dickinson v. Riley, 8 Cir., 86 F.2d 385; In re General Film Corp., 2 Cir., 274 F. 903; In re Clayton Magazines, Inc., 2 Cir., 77 F.2d 852. There had been, however, a minority view, of which perhaps the leading examples were In re Gould Mfg. Co., D.C.,E.D.Wis., 11 F.Supp. 644 (noted with approval in 45 Yale L.J. 734), and In re 168 Adams Bldg. Corp., 7 Cir., 105 F.2d 704, certiorari denied Steinbrecher v. Toman, 308 U.S. 623, 60 S.Ct. 378, 84 L.Ed. 520. See, also, 50 Yale L.J. 165, stating the arguments against restriction of the state’s taxing rights in criticism of In re Missouri Pac. R. Co., D.C.,E.D.Mo., 33 F.Supp. 728, which was later affirmed,- Arkansas Corporation Commission v. Thompson, 8 Cir.," }, { "docid": "22641476", "title": "", "text": "and remains without access to sources of proof when the taxpayer has not kept sufficient documentation. The legislative history indicates that the burden of proof on the issue of establishing claims was left to the Rules of Bankruptcy Procedure. See S. Rep. No. 95-989, p. 62 (1978); H. R. Rep. No. 95-595, p. 352 (1977). The Bankruptcy Rules are silent on the burden of proof for claims; while Federal Rule of Bankruptcy Procedure 3001(f) provides that a proof of claim (the name for the proper form for filing a claim against a debtor) is “prima facie evidence of the validity and amount of the claim,” this rule does not address the burden of proof when a trustee disputes a claim. The Rules thus provide no additional guidance. See, e. g., United, States v. Sampsell, 224 F. 2d 721,722-723 (GA91955); In re Avien, Inc., 390 F. Supp. 1335, 1341-1342 (EDNY 1975), aff’d, 532 F. 2d 273 (CA2 1976); In re Gorgeous Blouse Co., 106 F. Supp. 465 (SDNY 1952); see also In re Highway Constr. Co., 105 F. 2d 863, 866 (CA6 1939) (apparently accepting lower court’s placement of burden of proof on tax authority). See, e. g., In re Uneco, Inc., 532 F. 2d 1204, 1207 (CA8 1976); Paschal v. Blieden, 127 F. 2d 398, 401-402 (CA8 1942); In re Lang Body Co., 92 F. 2d 338, 341 (CA6 1937), cert. denied sub nom. Hipp v. Boyle, 303 U. S. 637 (1938); United States v. Knox-Powell-Stockton Co., 83 F. 2d 423, 425 (CA9), cert. denied, 299 U. S. 573 (1936). Some of these cases, such as Paschal and Lang Body Co., appear to confuse the burden of production (which ceases to be relevant upon presentation of a trustee’s case) with the burden of persuasion, under tax statutes that shift the entire burden of proof to the taxpayer. Whatever we make of their reasoning, these cases do not follow the rule whose pedigree petitioner wishes to establish. See, e. g., Fiori v. Rothensies, 99 F. 2d 922 (CA3 1938) (per curiam) (discussing prima facie value of tax authority’s claim, but failing" }, { "docid": "562866", "title": "", "text": "67 S.Ct. 467, 91 L.Ed. —. Prior thereto the Supreme Court had supported the doctrine announced many times by the majority of the Circuit Courts that the bankruptcy court had the power to fix and determine the amount and legality of tax claims. New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 51 L.Ed. 284. The case of In the Matter of Gustav Schaefer Co., Bankrupt, 6 Cir., 103 F.2d 237, 241, (Certiorari denied Wells v. Boyle, 308 U.S. 579, 60 S.Ct. 96, 84 L.Ed. 485) 6th Circuit, was determined prior to the first Supreme Court case of Arkansas Corporation Commission v. Thompson supra. In speaking of the power of the bankruptcy court to pass upon the matter of taxes (Sec. 64, sub. a “ * * * in case any question arises as to the amount or legality of any taxes, such question shall be heard and determined by the court * * * ”) : “The economic justification of the statute and its validity is fully set out and sustained in the following cases: Whitney v. Dresser, 200 U.S. 532, 536, 26 S.Ct. 316, 50 L.Ed. 584; New Jersey v. Anderson, 203 U.S. 483, 495, 27 S.Ct. 137, 51 L.Ed. 284; Van Huffel v. Harkelrode, Treas., 284 U.S. 225, 231, 52 S.Ct. 115, 76 L.Ed. 256, 78 A.L.R. 453; Truman v. Thalheimer, 9 Cir., 19 F.2d 468; In re De Angeles, 10 Cir., 36 F.2d 218; Henderson County v. Wilkins, 4 Cir., 43 F.2d 670; In re Clayton Magazines, 2 Cir., 77 F.2d 852; City of Springfield v. Hotel Charles Co., 1 Cir., 84 F.2d 589; Dickinson v. Riley, 8 Cir., 86 F.2d 385; Board of Directors St. Francis Levee Dist. v. Kurn, 8 Cir., 91 F.2d 118; In re Lang Body Co., 6 Cir., 92 F.2d 338.” Likewise the 9th Circuit in the case of United States v. Coast Wineries, Inc., 9 Cir., 131 F.2d 643, 648, determined: “The jurisdiction of the bankruptcy court over the subject matter of taxes is specifically granted by the Bankruptcy Act, § 64, sub. a, as amended, 44 Stat. 662," }, { "docid": "9950003", "title": "", "text": "FAKE, District Judge. Upon a study of the briefs filed in the above-entitled cause and a careful reading of the opinion in Re Gould Mfg. Co., D.C., 11 F.Supp. 644, as compared with the opinions in New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 51 L.Ed. 284, and City of Springfield v. Hotel Charles Co., 1 Cir., 84 F.2d 589, I am of the opinion that this court had jurisdiction under section 64a of the Bankruptcy Act, as amended, 11 U.S.C.A. § 104(a), to consider and decide whether taxes assessed against the real estate of the bankrupt were “in excess of the value of the interest of the bankrupt estate therein,” and, if excessive, to reduce the same. This conclusion is further strengthened by the language of Mr. Justice Roberts in Isaacs v. Hobbs Tie & Timber Co., 282 U.S. 734, 51 S.Ct. 270, 272, 75 L.Ed. 645, wherein he says: “Thus, while valid liens existing at the time of the commencement of a bankruptcy proceeding are preserved, it is solely within the power of a court of bankruptcy to ascertain their validity and amount and to decree the method of their liquidation.” The point is made that section 64a of the Bankruptcy Act applies only to property of the bankrupt and the title to the premises in question was not in the bankrupt but vested in the trustee at the time these taxes were levied. While it is true that the title was vested in the trustee (see Isaacs v. Hobbs Tie & Timber Co., supra), it was held in Henderson County, N. C., v. Wilkins, 4 Cir., 43 F.2d 670, that, although the title was so held when the taxes were levied, it was for the bankruptcy court to ascertain the true value thereof and to pay taxes on that value only. Judge Parker points out in the opinion that this is not a review of the action of the taxing authorities but a determination under the Bankruptcy Act as to how much should be paid on the claim for taxes from the assets held by" }, { "docid": "22588017", "title": "", "text": "the decision in the Thompson case is that where, after a hearing, a quasi-judicial body, thereunto duly empowered, determines the amount of a tax due, with the right on the part of the taxpayer to a judicial review of the determination, all conformable with the requirements of due process, such determination, upon becoming final by operation of law, is conclusive upon a court of bankruptcy save for mathematical error in the computation of the amount of the tax or legal error in its assessment. Cf. In re 168 Adams Building Corporation, D.C., 27 F.Supp. 247, 249, 250, affirmed sub nom. Steinbrecher v. Toman, 7 Cir., 105 F.2d 704, certiorari denied 308 U.S. 623, 60 S.Ct. 378, 84 L.Ed. 520; In re Schach, D.C., 17 F.Supp. 437, 438, 439; In re Gould Mfg. Co., D.C., 11 F.Supp. 644, 649. In Lyford v. City of New York, 137 F.2d 782, 786, the Court of Appeals for the Second Circuit said that “* * * the effect of the Thompson case is, in any event, to .restrict the court to finding if the tax is legally due and to deny it power to review the action of a quasi-judicial taxing body in setting, after due hearing, a valuation of property for tax purposes.” And, again, in Re Hotel Martin Co. of Utica, D.C., 41 F.Supp. 392, 394, it was said that “The Arkansas case, supra, illustrates the law relative to real property assessments by state or local authorities where the review of the assessments as provided by law was not taken.” The question in any instance, therefore, is whether the circumstances necessary to justify an exercise of bankruptcy’s power to redetermine a tax claim are present. We think they are in the instant case. The taxpayer having failed to file a feturn, the tax assessments against it were based upon estimated “settlements” arbitrarily made by the State’s Department of Revenue without hearing the taxpayer. The pertinent Pennsylvania statute, viz., the Fiscal Code of 1929, P.L. 343, as amended by the Act of February 2, 1937, P.L. 3, 72 P.S. §§ 1-1804, provides that," }, { "docid": "13085130", "title": "", "text": "were maintaining a contrary view. These decisions primarily held that while the bankruptcy court could examine into the validity of a tax claim, it had no jurisdiction to redetermine the amount where excessive valuations were in dispute. In re 168 Adams Bldg. Corporation, 105 F.2d 704 (7th Cir. 1939); In re Schach, 17 F.Supp. 437 (N.D.Ill.1936); In re Gould Mfg. Co., 11 F.Supp. 644 (E.D.Wis.1935). It was because of the development of this minority view that a proposal was made during legislative consideration of the Chandler Act .that would have strengthened the bankruptcy court’s power to redetermine the amount of tax claims. The proposal, however, was not enacted. 3A Collier, supra, at 2214-25. Shortly after the enactment of the Chandler Act, the United States Supreme Court decided Arkansas Corporation Commission v. Thompson, 313 U.S. 132, 61 S.Ct. 888, 85 L.Ed. 1244 (1941). This case involved a railroad in reorganization proceedings. The Corporation Commission, a state agency vested with complete control over valuation and assessment of property and with full power to summon witnesses and hear evidence, fixed the value of the railroad’s property after a hearing in which the trustee participated. The trustee failed to appeal the Commission’s order, but four months later he petitioned the bankruptcy court to redetermine the amount of tax owing by revising the property value found by the Commission. Id. at 140-41, 61 S.Ct. 888. The court held that the bankrupt was not entitled to a second hearing on the issue of value. Id. at 142, 61 S.Ct. 888. Theretofore the bankruptcy court could not redetermine the amount of a tax claim when the matter had already been passed upon by a state or federal court; the same result would attend when the issue had been determined after due hearing by a quasi-judicial agency. In re Monongahela Rye Liquors, Inc., 141 F.2d 864, 868 (3rd Cir. 1944). The United States Supreme Court has not yet addressed the question as to whether a trustee can obtain a redetermination of value where neither a court nor a quasi-judicial agency has held a hearing and made a determination" }, { "docid": "13085129", "title": "", "text": "11 U.S.C. § ll(a)(2A) (1976) The jurisdictional grant of § 2a(2A) was formerly contained in § 64a(4), and prior to 1938, in § 64a. The body of law that developed under these two predecessor sections was to the effect that the bankruptcy court had power to examine into the validity and amount of taxes legally due and owing to a sovereign unless the matter had been previously determined by a state or federal court. 3A Collier on Bankruptcy § 64.407 at 2205-10 (14th Ed. 1967); New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 51 L.Ed. 284 (1906); In re Thermiodyne Radio Corporation, 26 F.2d 716 (D.Del.1928); In re E. C. Fisher Corp., 229 F. 316 (D.Mass.1915). This power to redetermine the amount of a tax claim existed whether the claim was secured by a lien or not. 3A Collier, supra at 2212; cf. In re Century Vault Company, Inc., 416 F.2d 1035, 1040-41 (3d Cir. 1969) (interpreting § 2a(2A)). While the aforementioned body of law was developing, the courts of the Seventh Circuit were maintaining a contrary view. These decisions primarily held that while the bankruptcy court could examine into the validity of a tax claim, it had no jurisdiction to redetermine the amount where excessive valuations were in dispute. In re 168 Adams Bldg. Corporation, 105 F.2d 704 (7th Cir. 1939); In re Schach, 17 F.Supp. 437 (N.D.Ill.1936); In re Gould Mfg. Co., 11 F.Supp. 644 (E.D.Wis.1935). It was because of the development of this minority view that a proposal was made during legislative consideration of the Chandler Act .that would have strengthened the bankruptcy court’s power to redetermine the amount of tax claims. The proposal, however, was not enacted. 3A Collier, supra, at 2214-25. Shortly after the enactment of the Chandler Act, the United States Supreme Court decided Arkansas Corporation Commission v. Thompson, 313 U.S. 132, 61 S.Ct. 888, 85 L.Ed. 1244 (1941). This case involved a railroad in reorganization proceedings. The Corporation Commission, a state agency vested with complete control over valuation and assessment of property and with full power to summon witnesses and hear" }, { "docid": "562867", "title": "", "text": "following cases: Whitney v. Dresser, 200 U.S. 532, 536, 26 S.Ct. 316, 50 L.Ed. 584; New Jersey v. Anderson, 203 U.S. 483, 495, 27 S.Ct. 137, 51 L.Ed. 284; Van Huffel v. Harkelrode, Treas., 284 U.S. 225, 231, 52 S.Ct. 115, 76 L.Ed. 256, 78 A.L.R. 453; Truman v. Thalheimer, 9 Cir., 19 F.2d 468; In re De Angeles, 10 Cir., 36 F.2d 218; Henderson County v. Wilkins, 4 Cir., 43 F.2d 670; In re Clayton Magazines, 2 Cir., 77 F.2d 852; City of Springfield v. Hotel Charles Co., 1 Cir., 84 F.2d 589; Dickinson v. Riley, 8 Cir., 86 F.2d 385; Board of Directors St. Francis Levee Dist. v. Kurn, 8 Cir., 91 F.2d 118; In re Lang Body Co., 6 Cir., 92 F.2d 338.” Likewise the 9th Circuit in the case of United States v. Coast Wineries, Inc., 9 Cir., 131 F.2d 643, 648, determined: “The jurisdiction of the bankruptcy court over the subject matter of taxes is specifically granted by the Bankruptcy Act, § 64, sub. a, as amended, 44 Stat. 662, 666, 11 U.S.C.A. § 104, sub. a, which, among other things, provides that ‘The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States’. This language necessarily implies that in controverted matters the court must judicially determine the amount of the tax due.” See 8 C.J.S., Bankruptcy (Referees), § 268 et seq. In re De Angeles, 10 Cir., 36 F.2d 218. However, applying the doctrine of the said two recent Supreme Court cases solely to the factual situations therein, we find that the distinction rests upon the doctrine of res adjudicata in that the Supreme Court determined that the two agencies fixing the taxes were quasi-judicial bodies and that the proper respect and sanction should be accorded their determinations. On both occasions the court pointed out that the bodies were not ministerial but were quasi-judicial with a noticed hearing, production of witnesses prior to ascertainment of the tax, the right of review and appeal, etc. And as to its former decision of New Jersey v." }, { "docid": "15278986", "title": "", "text": "tax is to be assessed upon capital stock actually outstanding. It may well be doubted whether the board had power to tax any other stock. But be that as it may, § 64a specifically provides that in case any question arises as to the amount or legality of taxes, the same shall be heard and determined by the court, with a view to ascertaining the amount really due. We do not think it was the intention of Congress to conclude the bankruptcy courts by the findings of boards of this character, and that the claim should have been upon the basis of the capital stock actually outstanding.” There, as the Supreme Court held, the tax was illegal as to $30,000,000 of the stock. It was not the question of the amount of the tax which was involved, but the legality of a part of the tax. The board had taxed that which it had no authority to tax. The amount levied was correct if the board had power .to lay a tax upon the whole of the authorized capitalization. In re Gould Mfg. Co., supra, is directly in point in this case. There a tax had been levied upon real estate based upon an assessment. The trustee contended that the property had been overvalued by the assessor and that the amount of the tax levied was excessive. Judge Geiger in an exhaustive opinion reached the conclusion that a court of bankruptcy has no power to reassess the value of the property and to reduce the amount of the tax if it finds that the assessing bodies have overvalued it. With this conclusion I fully agree. It is not the function of the bankruptcy court to act as a board of revision to supervise the legally constituted assessing bodies. The case of Henderson County v. Wilkins, supra, decided by the Circuit Court of Appeals for the Fourth Circuit, remains to be considered. There the assessor had appraised the real estate of the bankrupt and fixed its value at $250,000. The trustee filed objections to the claims of the county for taxes" }, { "docid": "13356243", "title": "", "text": "amended) confers no power on the bankruptcy court to go behind the findings of value of the state, county, or municipal taxing authorities, we find but one case (In re Gould Mfg. Co. [D.C.] 11 F.Supp. 644). In the latter case, the case of New Jersey v. Anderson, supra, is discussed at much length and distinguished as to what is said therein, construing section 64a, supra, as obiter dictum. There were two questions before the Supreme Court in the Anderson Case; the chief one being, whether the alleged tax was or was not a tax. On this the court divided; the dissenting justices holding that the subject-matter did not constitute a tax. The other was, as to the power of the bankruptcy court to reduce such tax from one based on an assessment of $40,-000,000 as fixed by the taxing authorities of the state of New Jersey, to a tax based on a valuation of $10,000,000 as found by the bankruptcy court. In discussing the latter question, the court cites section 64a, supra, and construes it as affording authority for the view that the finding of value by the State Board was not conclusive. The Anderson Case, supra, has been cited by practically every court which has had occasion to construe section 64a, as an authority in favor of the power of the bankruptcy court to revise the findings of the taxing authorities as to the amount of taxes legally due. Among these we find, In re Clayton Magazines, supra (C.C.A.2); Henderson County v. Wilkins, supra (C.C. A.4) and Truman v. Thalheimer, supra (C. C.A.9); each as indicated, a decision by a federal Court of Appeals. But we content ourselves in merely stating the views of other courts upon the question, without presently ruling it. This for the reason, that,appellant agrees with what seems, from the cases above cited, to be the weight of opinion upon the question, and appellee having won below, is content now and no longer urges his former contention. And so the sole question now presented on the record is, whether upon the evidence heard before" }, { "docid": "22588016", "title": "", "text": "on an identical issue of controverted fact—the value of the property taxed.” The Supreme Court further pointed out in the Thompson case that the legality of the action of Arkansas in entrusting the determination of valuations to its Corporation Commission was not, and could not be, challenged, and said that if the Commission properly found the value of the property, the amount of the taxes was not open to question as it was not asserted that the Commission had made an improper arithmetical computation in applying the legal rate to the determined property value. It was “in this respect, as well as with regard to the dissimilar duties and functions of the state administrative agencies involved, that * * * [the Thompson] case differs from that of New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 141, 51 L.Ed. 284 * * Under the New Jersey law the assessors had acted ministerially and not judicially, while under the Arkansas law the Corporation Commission had acted quasi-judicially and not ministerially. The view we take of the decision in the Thompson case is that where, after a hearing, a quasi-judicial body, thereunto duly empowered, determines the amount of a tax due, with the right on the part of the taxpayer to a judicial review of the determination, all conformable with the requirements of due process, such determination, upon becoming final by operation of law, is conclusive upon a court of bankruptcy save for mathematical error in the computation of the amount of the tax or legal error in its assessment. Cf. In re 168 Adams Building Corporation, D.C., 27 F.Supp. 247, 249, 250, affirmed sub nom. Steinbrecher v. Toman, 7 Cir., 105 F.2d 704, certiorari denied 308 U.S. 623, 60 S.Ct. 378, 84 L.Ed. 520; In re Schach, D.C., 17 F.Supp. 437, 438, 439; In re Gould Mfg. Co., D.C., 11 F.Supp. 644, 649. In Lyford v. City of New York, 137 F.2d 782, 786, the Court of Appeals for the Second Circuit said that “* * * the effect of the Thompson case is, in any event, to .restrict the" }, { "docid": "15278987", "title": "", "text": "of the authorized capitalization. In re Gould Mfg. Co., supra, is directly in point in this case. There a tax had been levied upon real estate based upon an assessment. The trustee contended that the property had been overvalued by the assessor and that the amount of the tax levied was excessive. Judge Geiger in an exhaustive opinion reached the conclusion that a court of bankruptcy has no power to reassess the value of the property and to reduce the amount of the tax if it finds that the assessing bodies have overvalued it. With this conclusion I fully agree. It is not the function of the bankruptcy court to act as a board of revision to supervise the legally constituted assessing bodies. The case of Henderson County v. Wilkins, supra, decided by the Circuit Court of Appeals for the Fourth Circuit, remains to be considered. There the assessor had appraised the real estate of the bankrupt and fixed its value at $250,000. The trustee filed objections to the claims of the county for taxes and upon the hearing the referee found the value to be $110,-000. The appraisers appointed to appraise the bankrupt’s estate had. valued the real estate at $100,000 and it was afterward sold for $110,000. The court held, citing as authority to sustain its position New Jersey v. Anderson, supra, that: “ * * * when a question arose as to whether it had been properly valued for purposes of taxation or not, this was a matter for the determination of the bankruptcy court under the statute quoted above, as the question involved was one as to\" the amount of the tax to be paid from the estate. It is well settled that in determining such a question the court is not concluded by the findings of the taxing authorities.” This holding by the Circuit Court of Appeals does not appear to me to be justified by the decision in New Jersey v. Anderson, supra, and is, I believe, erroneous. It seems to be the theory of counsel for the trustee that if the court does" }, { "docid": "562873", "title": "", "text": "predecessor. These cases relied in substance upon State of New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 51 L.Ed. 284, where such a redetermination by the bankruptcy court of a New Jersey tax had been upheld. See 3 Collier, op.cit. supra, pp. 2145, 2146, and citations; and cf. Dickinson v. Riley, 8 Cir., 86 F.2d 385; In re General Film Corp., 2 Cir., 274 F. 903; In re Clayton Magazines, Inc., 2 Cir., 77 F.2d 852. There had been, however, a minority view, of which perhaps the leading examples were In re Gould Mfg. Co., D.C.,E.D.Wis., 11 F.Supp. 644 (noted with approval in 45 Yale L.J. 734), and In re 168 Adams Bldg. Corp., 7 Cir., 105 F.2d 704, certiorari denied Steinbrecher v. Toman, 308 U.S. 623, 60 S.Ct. 378, 84 L.Ed. 520. See, also, 50 Yale L.J. 165, stating the arguments against restriction of the state’s taxing rights in criticism of In re Missouri Pac. R. Co., D.C.,E.D.Mo., 33 F.Supp. 728, which was later affirmed,- Arkansas Corporation Commission v. Thompson, 8 Cir., 116 F.2d 179, but was reversed by the Supreme Court in the case first cited. There is no doubt but that the Supreme Court’s decision renders many at least of the earlier cases no longer valid precedents, or that it considerably restricts interference by the bankruptcy court with state-taxing powers. 2{C 3|c jjí “There were two major questions before the Supreme Court in that case: first, whether § 64, sub. a applies in railroad reorganization proceedings, and second, whether if applicable it allowed redetermin-ation of a tax finally settled by state authorities. The first was expressly left undecided by the Court. * * * “Our present problem, however, is not the determination of priorities, but merely the extent of power of the bankruptcy court to decide upon tax claims. * * * On the other hand, the effect of the Thompson case is, in any event, to restrict the court to finding if the tax is legally due and to deny it power to review the action of a quasi- judicial taxing body in setting," }, { "docid": "15278984", "title": "", "text": "assessor to ascertain the true value and no attempt was made by the owner of the property to have the valuation of the assessor reviewed. The trustee, however, insists that under section 64a of . the Bankruptcy Act the trustee is not bound by the appraisal made by the assessor’s office, even though no effort is made to secure a revision of the assessor in the manner provided by the laws of Illinois, but that this court may proceed to appraise the property, and if it finds that the valuation fixed by the assessor is too high may reduce the amount of the tax. This power the trustee finds in the phrase in section 64a (11 U.S.C.A. § 104(a), .that “in case any question arises as to the amount or legality of any such tax • the same shall be heard and determined by the court.” There are many cases in 'which the power of the bankruptcy court under section 64a have been discussed. All of these cases have been reviewed by the referee in his report, and only three in his opinion, in which I concur, have any real bearing upon the question presented here. The three are New Jersey v. Anderson, 203 U. S. 483, 27 S.Ct. 137, 141, 51 L.Ed. 284, Henderson County v. Wilkins (C.C.A.) 43 F.(2d) 670, 671, and In re Gould Mfg. Co. (D.C.) 11 F.Supp. 644. New Jersey v. Anderson, supra, seems to me not in point. The Cosmopolitan Power Company was a corporation organized under the laws of New Jersey. Its authorized capital 'stock was $40,000,000, of which $10,000,000 had been issued. In May, 1902, its stock was reduced, pursuant to the laws of New Jersey, to $2,500,000. The laws of the State provided for the imposition of a tax upon the capital stock issued and outstanding of corporations organized under the laws of that State. The state board assessed the tax upon the basis of the authorized capitalization, instead of the amount actually outstanding. The court held that the finding of the state board was not conclusive. The court said: “The" }, { "docid": "22641477", "title": "", "text": "105 F. 2d 863, 866 (CA6 1939) (apparently accepting lower court’s placement of burden of proof on tax authority). See, e. g., In re Uneco, Inc., 532 F. 2d 1204, 1207 (CA8 1976); Paschal v. Blieden, 127 F. 2d 398, 401-402 (CA8 1942); In re Lang Body Co., 92 F. 2d 338, 341 (CA6 1937), cert. denied sub nom. Hipp v. Boyle, 303 U. S. 637 (1938); United States v. Knox-Powell-Stockton Co., 83 F. 2d 423, 425 (CA9), cert. denied, 299 U. S. 573 (1936). Some of these cases, such as Paschal and Lang Body Co., appear to confuse the burden of production (which ceases to be relevant upon presentation of a trustee’s case) with the burden of persuasion, under tax statutes that shift the entire burden of proof to the taxpayer. Whatever we make of their reasoning, these cases do not follow the rule whose pedigree petitioner wishes to establish. See, e. g., Fiori v. Rothensies, 99 F. 2d 922 (CA3 1938) (per curiam) (discussing prima facie value of tax authority’s claim, but failing to discuss burden of proof); Dickinson v. Riley, 86 F. 2d 385 (CA8 1936) (resolving claim without reference to burden of proof); In re Clayton Magazines, Inc., 77 F. 2d 852 (CA2 1935) (same)." }, { "docid": "13356242", "title": "", "text": "the sovereignties, or public entities, which assessed and levied the taxes sought to be allowed in a court in bankruptcy. Cases which hold that such an assessment is prima facie evidence of correctness, but that such evidence may be rebutted in a hearing in the bankruptcy court and modified or overturned, are: In re Clayton Magazines, 77 F.(2d) 852, 854 (C.C.A.2); Whitney v. Dresser, 200 U.S. 532, 26 S.Ct. 316, 50 L.Ed. 584; New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 51 L.Ed. 284; Henderson County v. Wilkins, 43 F.(2d) 676, (C.C.A.4); Truman v. Thalheimer, 19 F.(2d) 468; (C.C.A.9); In re United Five and Ten Cent Store, 242 F. 1005 (D.C.); In re Simcox, Inc., 243 F. 479 (D.C.); In re Sheinman, 14 F.(2d) 823; 824 (D.C.) ; In re Williams Oil Corp., 265 F. 401 (D.C.) ; In re Heffron Co., 216 F. 642 (D.C.); In re Geo. F. Redmond & Co., Inc., 17 F. (2d) 128 (D.C.). On the other view, that is, that section 64a of the Bankruptcy Act (as amended) confers no power on the bankruptcy court to go behind the findings of value of the state, county, or municipal taxing authorities, we find but one case (In re Gould Mfg. Co. [D.C.] 11 F.Supp. 644). In the latter case, the case of New Jersey v. Anderson, supra, is discussed at much length and distinguished as to what is said therein, construing section 64a, supra, as obiter dictum. There were two questions before the Supreme Court in the Anderson Case; the chief one being, whether the alleged tax was or was not a tax. On this the court divided; the dissenting justices holding that the subject-matter did not constitute a tax. The other was, as to the power of the bankruptcy court to reduce such tax from one based on an assessment of $40,-000,000 as fixed by the taxing authorities of the state of New Jersey, to a tax based on a valuation of $10,000,000 as found by the bankruptcy court. In discussing the latter question, the court cites section 64a, supra, and construes" }, { "docid": "11421798", "title": "", "text": "is plain that it is the duty of the court to hear and determine whether the value at which the property of the bankrupt was assessed was proper and correct according to the local taxing statutes. Under Article 1, Section 8' of the Constitution, U.S.C.A., it is wholly within the discretion of the Congress to determine to what extent liens obtained by prior statutory proceedings shall be recognized in the distribution of the assets of a bankrupt. First National Bank v. Staake, 202 U.S. 141, 149, 26 S.Ct. 580, SO L.Ed. 967. It is unnecessary for us to decide whether the Congress could deprive a State or local subdivision of government of either its common law or statutory lien against a bankrupt for taxes. The enactment of the statute in question did not invade the reserved rights of the States or the exercise of a power not delegated to the United States. The Bankruptcy Court must determine the amount and legality of the taxes due according to the statutory law of the States which have priority in payment. The economic justification of the statute and its validity is fully set out and sustained in the following cases: Whitney v. Dresser, 200 U.S. 532, 536, 26 S.Ct. 316, 50 L.Ed. 584; New Jersey v. Anderson, 203 U.S, 483, 495, 27 S.Ct. 137, 51 L.Ed. 284; Van Huffel v. Harkelrode, Treas., 284 U.S. 225, 231, 52 S.Ct. 115, 76 L.Ed. 256, 78 A.L.R. 453; Truman v. Thalheimer, 9 Cir., 19 F.2d 468; In re De Angeles, 10 Cir., 36 F.2d 218; Henderson County v. Wilkins, 4 Cir., 43 F.2d 670; In re Clayton Magazines, 2 Cir., 77 F.2d 852; City of Springfield v. Hotel Charles Co., 1 Cir., 84 F.2d 589; Dickinson v. Riley, 8 Cir., 86 F.2d 385; Board of Directors St. Francis Levee Dist. v. Kurn, 8 Cir., 91 F.2d 118; In re Lang Body Co., 6 Cir., 92 F.2d 338. There was no privity between the trustee and the bankrupt. The former acquired title to the property by operation of law and the doctrine of estoppel is inapplicable. Under" }, { "docid": "562877", "title": "", "text": "existence of the power. * * * “Generally speaking, therefore, we think that a bankruptcy court has the power to redetermine tax claims in the exercise of its jurisdiction under the Chandler Act. But we also think that certain factual determinations in respect of such claims, when competently made in another forum, may be conclusive at a hearing thereon in a bankruptcy court. Such we believe is indicated by a comparative reading of the decisions in New Jersey v. Anderson, and Arkansas Corporation Commission v. Thompson, supra. * * * “The view we take of the decision in the Thompson case is that where, after a hearing, a quasi-judicial body, thereunto duly empowered, determines the amount of a tax due, with the right on the part of the taxpayer to a judicial review of the determination, all conformable with the requirements of due process, such determination, upon becoming final by operation of law, is conclusive upon a court of bankruptcy save for mathematical error in the computation of the amount of the tax or legal error in its assessment. Cf. In re 168 Adams Building Corporation, D.C., 27 F.Supp. 247, 249, 250, affirmed sub nom. Steinbrecher v. Toman, 7 Cir., 105 F.2d 704, certiorari denied 308 U.S. 623, 60 S.Ct. 378, 84 L.Ed. 520; In re Schach, D.C., 17 F.Supp. 437, 438, 439; In re Gould Mfg. Co., D.C., 11 F.Supp. 644, 649. In Lyford v. City of New York, 2 Cir., 137 F.2d 782, 786, the Court of Appeals for the Second Circuit said that ‘ * * * the effect of the Thompson case is, in any event, to restrict the court to finding if the tax is legally due and to deny it power to review the action of a quasi-judicial taxing body in setting, after due hearing, a valuation of property for tax purposes.’ And, again, in Re Hotel Martin Co. of Utica, D.C., 41 F.Supp. 392, 394, it was said that ‘The Arkansas case, supra, illustrates the law relative to real property assessments by state or local authorities, where the review of the assessments as" } ]

[ { "docid": "22390351", "title": "", "text": "§ 1981. The District Court was also to reconsider its dismissal of the pendent state claims. There is a common popular understanding that there are three major human races — Caucasoid, Mongoloid, and Negroid. Many modern biologists and anthropologists, however, criticize racial classifications as arbitrary and of little use in understanding the variability of human beings. It is said that genetically homogeneous populations do not exist and traits are not discontinuous between populations; therefore, a population can only be described in terms of relative frequencies of various traits. Clear-cut categories do not exist. The particular traits which have generally been chosen to characterize races have been criticized as having little biological significance. It has been found that differences between individuals of the same race are often greater than the differences between the “average” individuals of different races. These observations and others have led some, but not all, scientists to conclude that racial classifications are for the most part sociopolitical, rather than biological, in nature. S. Molnar, Human Variation (2d ed. 1983); S. Gould, The Mismeasure of Man (1981); M. Banton & J. Harwood, The Race Concept (1975); A. Montagu, Man’s Most Dangerous Myth (1974); A. Montagu, Statement on Race (3d ed. 1972); Science and the Concept of Race (M. Mead, T. Dobzhansky, E. Tobach, & R. Light eds. 1968); A. Montagu, The Concept of Race (1964); R. Benedict, Race and Racism (1942); Littlefield, Lieberman, & Reynolds, Redefining Race: The Potential Demise of a Concept in Physical Anthropology, 23 Current Anthropology 641 (1982); Biological Aspects of Race, 17 Int’l Soc. Sci. J. 71 (1965); Washburn, The Study of Race, 65 American Anthropologist 521 (1963). We note that under prior cases, discrimination by States on the basis of ancestry violates the Equal Protection Clause of the Fourteenth Amendment. Hernandez v. Texas, 347 U. S. 476, 479 (1954); Oyama v. California, 332 U. S. 633, 646 (1948); Hirabayashi v. United States, 320 U. S. 81, 100 (1943). See also Hurd v. Hodge, 334 U. S. 24, 32 (1948). Justice Brennan, concurring. Pernicious distinctions among individuals based solely on their ancestry are antithetical to" } ]

[ { "docid": "14729594", "title": "", "text": "the last ten years as far as desegregation is concerned,” Court’s Opinion at 877, the liability focus of the plaintiffs and the court is unmistakably on the principle that more could have been done to achieve greater racial balance, that is more schools could approach the system-wide minority average in student assignment. See Court’s Opinion at 876, 877-78, 882-84 (analyzing schools which plaintiffs suggest have “clear racial identities,” id. at 882, and essentially criticizing school board decisions which resulted in these schools not approximating the system-wide average of minority students). However, “the fact that a school board’s desegregation plan leaves some disparity in racial balance among various schools in the system does not alone make that plan unacceptable.” Wright v. Council of the City of Emporia, 407 U.S. 451, 464, 92 S.Ct. 2196, 2204, 33 L.Ed.2d 51 (1972) (footnote omitted). Equally important for this case is the Supreme Court’s discussion in Swann of “whether every all-Negro and all-white school must be eliminated as an indispensable part of a remedial process of desegregation.” Swann, 402 U.S. at 22, 91 S.Ct. at 1279. In a section entitled “One-Race Schools,” the Court applied a commonsense approach to the problem of racial concentration in various parts of a metropolitan area. The record in this case reveals the familiar phenomenon that in metropolitan areas minority groups are often found concentrated in one part of the city. In some circumstances certain schools may remain all or largely of one race until new schools can be provided or neighborhood patterns change. Schools all or predominantly of one race in a district of mixed population will require close scrutiny to determine that school assignments are not part of state-enforced segregation. In light of the above, it should be clear that the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law. The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with" }, { "docid": "9704192", "title": "", "text": "predominantly Black. This fact alone led into a non sequitur by concluding that the City’s current demographics require that the plans be painstakingly scrutinized to “ensure that the decree is not being used to prefer the majority race in the city, whether black or white.” Concurrence, at 1168-69. This point ignores the record against which the tailored remedy of the consent decree must be measured. That record clearly shows the existence of vestiges of racial exclusion that the parties, by entering into the consent decree, sought to eradicate. A change in the politieal/racial makeup of Memphis is irrelevant with respect to that reality. The reversal here threatens to freeze into place the vestiges of those racial policies. A cursory examination of the historic interplay of race and power in our nation reveals the expressed fear of “majority” preference to be unwarranted at best. See Keith, J., dissenting, at 1180. The simple reversal of the races to determine the propriety of racial classifications is not useful in evaluating the validity of the plans before this court, for it decontextual-izes a debate that has little actual relevance outside of the context of the history or politics from which it arose. Because the differences between blacks and whites relevant for purposes of assessing the legitimacy of unequal treatment are more than a mere matter of skin pigmentation ... the reversal test is superficial and misleading. To be meaningful, the reversal test must take these differences into account, entailing more than its simple hypothetical color switch, but also a switch in economic, political, and historical conditions, and a switch in attitudes, beliefs, and psychological makeups. Rosenfeld, supra, at 1776. Consequently, because the current racial traits of each of these considerations have not also been altered, there is little reason to believe that Memphis’ limited use of benign racial classifications will result in a system of reverse discrimination. V. We write at considerable length, because today the majority invalidates Memphis’s laudable attempt at racial healing and eradication of the present day effects of racial discrimination. In so holding, the majority takes yet another premature step" }, { "docid": "23698971", "title": "", "text": "1981 exists to remedy racial discrimination, has never precisely defined its conception of “race.” See Johnson, 421 U.S. at 459-60, 95 S.Ct. at 1719-20; McDonald, 427 U.S. at 287, 96 S.Ct. at 2582; Jones, 392 U.S. at 413, 88 S.Ct. at 2189; Georgia v. Rachel, 384 U.S. 780, 791, 86 S.Ct. 1783, 1789, 16 L.Ed.2d 925 (1966). . The dictionary provides an example of the lack of precision in the term. Race. A group of persons, animals, or plants, connected by common descent or origin; a tribe, nation, or people, regarded as of common stock; a group of several tribes or peoples, forming a distinct ethnical stock; one of the great divisions of mankind, having certain physical peculiarities in common. 2 OXFORD ENGLISH DICTIONARY 2400 (1971, Compact Ed.). Race. 1. Any of the different varieties of mankind, distinguished by form of hair, color of skin and eyes, stature, bodily proportions, etc.: many anthropologists now consider that there are only three primary major groups, the Caucasoid, Negroid, and Mongoloid, each with various subdivisions (sometimes also called races): the term has acquired so many unscientific connotations that in this sense it is often replaced in scientific usage by ethnic stock or group. 2. a population that differs from others in the relative frequency of some gene or genes... 3. any geographical, national, or tribal ethnic grouping____ 5. any group of people having the same activities, habits, ideas, etc. WEBSTER’S NEW WORLD DICTIONARY 1169 (1972 Ed.) . See Gonzalez v. Stanford Engineering, Inc., 597 F.2d 1298, 1300 (9th Cir.1979): \"A substantial portion of the Mexican population traces its roots to a mixture of the Caucasian (Spanish) and Native American races. With this background prejudice towards those of Mexican descent having a skin color not characteristically Caucasian must be said to be racial prejudice under 1981.” But see Manzanares v. Safeway Stores, Inc., 593 F.2d 968, 970 (10th Cir.1979). (Though Mexican Americans not technically another race, community attitudes differentiating Hispanics from \"Anglos” are sufficient to bring care within Section 1981 because these attitudes are enough like racial prejudice.) . \"Just what constitutes a race" }, { "docid": "22853958", "title": "", "text": "Cf., e.g., Cleburne, 473 U.S. at 442 n. 10, 105 S.Ct. at 3255-56 n. 10 (casting doubt on immutability theory); id. at 440-441 (stating the defining characteristics of suspect classes without mentioning immutability); Murgia, 427 U.S. at 313, 96 S.Ct. at 2566- 67 (same); Rodriguez, 411 U.S. at 28, 93 S.Ct. at 1293-94 (same). I nonetheless consider immutability because the Supreme Court has often focused on immutability, see, e.g., Plyler, 457 U.S. at 220, 102 S.Ct. at 2396; Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770 (plurality), and has sometimes described the recognized suspect classes as having immutable traits, see, e.g., Parham v. Hughes, 441 U.S. 347, 351, 99 S.Ct. 1742, 1745, 60 L.Ed.2d 269 (1979) (plurality opinion) (describing race, national origin, alien-age, illegitimacy, and gender as immutable). It is clear that by “immutability” the Court has never meant strict immutability in the sense that members of the class must be physically unable to change or mask the trait defining their class. People can have operations to change their sex. Aliens can ordinarily become naturalized citizens. The status of illegitimate children can be changed. People can frequently hide their national origin by changing their customs, their names, or their associations. Lighter skinned blacks can sometimes “pass” for white, as can Latinos for Ang-los, and some people can even change their racial appearance with pigment injections. See J. Griffin, Black Like Me (1977). At a minimum, then, the Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity. Reading the case law in a more capacious manner, “immutability” may describe those traits that are so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change them, regardless of how easy that change might be physically. Racial discrimination, for example, would not suddenly become constitutional if medical science developed an easy, cheap, and painless method of changing one’s skin pigment. See Tribe, supra, at 1073-74 n. 52. See generally Note," }, { "docid": "15523619", "title": "", "text": "in magnitude to some differences observed in several other pairs of marine mammal species and greater than some. For example, there is only one fixed base pair difference between short-beaked common dolphins (Delphinus delphis) and long-beaked common dolphins (Delphinus capensis), albeit within a shorter segment of the control region (Heyn-ing and Perrin, 1994). At nuclear loci, genetic differences between Residents and Transients are greater than differences between the most geographically distant pair of Resident populations thát have been compared for microsatellite diversity (Southern Residents vs. Southern Alaska Residents; see Section 2.2.2). These differences are evidence of reproductive isolation on an evolutionary scale between both male and female Residents and Transients. In addition- and perhaps more importantly-iüesi-dents and Transients have different diets and different external morphology. This suggests that if Residents were extirpated, Transients might not fill the vacant ecological niche left open in an ecological timeframe. (AR 6 at 53 (emphases added)). As noted by the BRT, “formal taxonomic changes are often slow to occur and lag behind current knowledge.” (AR 6 at x (emphasis added)). The BRT explained: The uncertainty surrounding killer whale taxonomy is characteristic of marine mammals. Nomenclature has not caught up with knowledge (particularly genetic information), due to the difficult and time-consuming traditional process of obtaining and classifying skulls needed to formally describe what many scientists recognize as discrete taxonomic entities. Subspecies have only been named for a small number of marine mammal species. For example, the dwarf minke whale is referenced by Rice (1998) as an “unnamed subspecies.” “Forms”, “ecotypes” and “races” are all terms that can be used to describe populations or groups of populations that will likely be designated formal species or subspecies sometime in the future. (AR 6 at 54). Similarly, one BRT white paper stated that “[i]t is simply a technicality that there remains a single species of killer whale: the taxonomy does not reflect the current state of knowledge.” (SAR 13 at 6). NMFS appears to rely upon the difficulty of establishing formal taxonomic changes for its decision to credit the single global Orcinus orea taxon. Defendants note that “the" }, { "docid": "8962920", "title": "", "text": "other ethnic minorities. Remaining still is a more pernicious, albeit intangible, form of race discrimination in the individual’s unconscious thoughts that influences the decision making process. As a result, “individuals ... ubiquitdusly attach a significance to race that is irrational and often used outside their awareness.” McClesky v. Kemp, 481 U.S. 279, 332, 107 S.Ct. 1756, 1788, 95 L.Ed.2d 262 (1987) (Brennan, J. dissenting) (quoting Lawrence, The Id, The Ego and Equal Protection, infra fn. 20). Consequently, the focus on “purposeful” discrimination is inadequate as a response to more subtle and deeply buried forms of racism. In 1909, the United States Supreme Court acknowledged that “[racial] [b]ias or prejudice is such an elusive condition of the mind that it is most difficult, if not impossible, to always recognize its existence.” Crawford v. United States, 212 U.S. 183, 196, 29 S.Ct. 260, 265, 53 L.Ed. 465 (1909). Eighty-three years later, Crawford holds: the inquiry to determine racial bias is still “difficult, if not impossible.” Without consideration of the influences of unconscious racism, the standard of review set forth in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) is a “crippling burden of proof.” Batson v. Kentucky, 476 U.S. 79, 92, 106 S.Ct. 1712, 1721, 90 L.Ed.2d 69 (1985). The concomitant twin of racism is class oppression. Race and class bias have always worked together to reinforce systems 'of social control and economic distribution. Arguably, most forms of overt racism have been eliminated. However, those who choose to discriminate-on the basis of race find it easier to achieve the same results by basing their distinctions on class. Ergo, identification of race bias has become more complex, more divisive, and morally more problematic. On average, blacks experience significantly worse economic conditions than whites, and historically the criminal justice system has dealt more harshly with those who are economically weak. Black people constitute a disproportionate share of persons who exist in absolute poverty. In 1990, there were 33.6 million persons in poverty in the U.S. Although blacks comprise only 12% of the nation’s population, 29% of those poverty stricken" }, { "docid": "9750887", "title": "", "text": "that culture is a learned trait, not an immutable one. See Melville J. Herskovits, Man and His Works 17 (1967) (“There is general agreement that culture is learned[.]”). Further, Herskovits explicitly distinguished culture from national origin: Race, nationality, language, and culture are in actuality independent variables. They meet only in the persons of given individuals who belong to a particular race, are citizens of a specific nation, speak a certain language, and live in accordance with the traditions of their society. Id. at 149. Moreover, Richard D. Alba, in Ethnic Identity: The Transformation of White America (1990) writes that “[e]thnic culture embraces the patterned, commonplace actions that distinguish members of one ethnic group from another, including food, language, and holiday ceremony.” Id. at 76. In the same vein, Milton M. Gordon, writing in Assimilation in American Life (1964), has said that “[c]ulture, as the social scientist uses the term, refers to the social heritage of man — the ways of acting and the ways of doing things which are passed down from one generation to the next, not through genetic inheritance but by formal and informal methods of teaching and demonstration.” Id. at 32. Larry L. Naylor, in Culture and Cultural Groupings, in Cultural Diversity in the United States (Larry L. Naylor, ed., 1997), notes that “[traditionally, anthropologists have used culture to describe groups of people inhabiting certain geographical areas who share beliefs, behaviors, customs, or a total way of life.” Id. at 7. Because an individual’s cultural heritage encompasses a set of beliefs and a manner of behavior that exist conceptually and practically quite apart from that individual’s immutable sex, race or national origin, I believe that cultural heritage should not be considered a prohibited basis for departure under the wording of the current guideline. Indeed, nowhere in the guidelines does the term cultural heritage appear; it is thus best categorized as what the Supreme Court has described as an unmentioned factor. See Koon v. United States, 518 U.S. 81, 96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Reliance on unmentioned factors is not absolutely prohibited, see United States" }, { "docid": "682234", "title": "", "text": "about the origins or causes of observed racial and social class differences in intelligence quotient and achievement test scores is most unsatisfactory. While the IQ test has served as a reliable predicator of success in school for groups of middle class children of whatever race, it does not measure genetic intellectual ability. When black and white students have the same socioeconomic background, there is not a great difference in their average test scores. During this period, students having relatively low academic achievement levels have been disproportionately concentrated in those Central City schools serving areas having substantial lower socioeconomic group populations. Schools in the Central City have generally ranked substantially below those in outlying areas that serve higher socio-economic groups. There has not been any direct relationship between the student body racial composition of a school and the relative average levels of pupil achievement, intelligence quotients, and school readiness test scores. A rough coincidence of such factors, however, was suggested by the evidence. For example, with respect to the results of the 1973 kindergarten readiness tests, none of the schools ranking in the top one-quarter were over 16.22%B, and most had very small black pupil population percentages. None of the schools in the second quarter were over 21.73%B, but there was a wide and varied range of student body racial percentages among the schools so ranked. The third quarter contained 5 schools whose black pupil percentages were over 85%, including Ninth (100%B), Meinecke (98.54%B), and Auer (96.53%B). Nine schools had no black students, and 7 had black pupil percentages ranging between 11% and 69%. The fourth quarter contained 21 schools with student populations that were between 70% and 100% black. Four schools had marginal black student populations, while 6 were substantially integrated. The results of the 1973 intelligence quotient and achievement tests for the 4th and 6th grades at these same elementary schools indicated a comparable series of patterns but with a substantial change in rank among some individual schools. The results of the 1973 intelligence quotient and achievement tests for 10th graders revealed a slightly different pattern. The top seven" }, { "docid": "6404156", "title": "", "text": "acuity. “Race” classifications embody the same kind of process. “Just what constitutes a race is a hard question to answer, since one’s classification usually depends on the purpose of classification,” S. Molnar, Races, Types & Ethnic Groups, 13 (1975). Thus a group of scientists after developing a list of “racial types” emphasized that the list “of 30 ‘races’ might have been ten or 50; the line of discrimination in many cases is arbitrary. ... If this list does nothing else, we hope that it will bring home to the student the realization that race is not a static thing at all.... History, in the biological as well as the cultural senses, is always in motion.” C. S. Coon, S. Garn and J. Birdsell, Races: A Study of the Problems of Race Formation In Man, 140 (1950), quoted in Molnar, supra at 16. It is, of course, true that Nazi race “scientists” believed in immutable characteristics that existed “out there” (see A. Montagu, Man’s Most Dangerous Myth, 30 passem (1964)), but it appears generally agreed that the “outstanding development of the twentieth century has been the replacement of typological thinking with a populationist approach that takes into account the range of variability of mankind .... A consideration of variability and intermediates (the populationist approach) avoids the confusion that was faced by somatology in the early part of this century. At this point ... there are at least sixty systems for typing human body build, each probably equally valid. The number plus the limited explanatory power of such typologies has shown them to be more art than science.” Molnar, supra at 12. Nonetheless, efforts at static racial classification continue. Because no single characteristic was found to be a sufficient basis for classification, more and different elements were included and combined. These too have failed to produce classifications essentially meaningful beyond themselves. “With the newer techniques of taxonomy which utilize computer facilities investigators can process thousands of items of information, .... But rather than clarifying and establishing definite boundaries between populations, this additional information raises new questions and often casts doubt on the" }, { "docid": "22281480", "title": "", "text": "teacher to instruct pupils of another race. One of the major factors, he said, was environment; negro teachers do not understand many of the problems of white pupils; this relates to the ability of a teacher to communicate or to establish rapport with a pupil; graduates of certain Arkansas negro colleges, “generally speaking”, are inferior to graduates of other Arkansas colleges whose student bodies are white; these communication problems are rooted in differing “speech patterns”. Within the framework of these “practical situations” the superintendent stated he fully intended to hire teachers without regard to race. In their brief the defendants deny that any Sullivan teacher was passed over in filling vacancies on racial grounds. They do argue, however, that race may be a rational and permissible criterion in the employment of teachers in various senses and for various reasons. They suggest that a Negro may be disqualified for a reason generally associated with race but which is not grounded on consideration of race per se. For example, an applicant may be considered inferior because he attended a poorly regarded negro college, or because his speech pattern is so different from that of his prospective pupils as to pose a serious obstacle to communication, or because he fails to pass an objective qualification test. It is argued that in some circumstances race per se may be a valid factor. Thus, rapport between teacher and pupil, which is essential “to a really effectual instructional effort”, may be unattainable where they are of different races and this difference affects attitudes, personal philosophies and prejudices. It is also said that a teacher may bear such hostility toward members of another race as to render him incapable of effectively educating them. We recognize that teaching is an art and that excellence does not depend upon knowledge, experience, formal training and classroom conduct alone. Fitness for teaching rests upon a broad range of factors and encom passes numerous personality and character traits. See Shelton v. Tucker, supra, p. 485 of 364 U.S., 81 S.Ct. 247, 5 L.Ed.2d 231; Beilan v. Board of Pub. Educ., 357 U.S." }, { "docid": "11233839", "title": "", "text": "mass at the classroom level. If The University of Texas at Austin is to accomplish its mission and fulfill its flagship role, it must prepare its students to be the leaders of the State of Texas. In the near future, Texas will have no majority race; tomorrow’s leaders must not only be drawn from a diverse population but must also be able to lead a multicultural workforce and to communicate policy to a diverse electorate. The University has a compelling educational interest to produce graduates who are capable of fulfilling the future leadership needs of Texas. Because the University’s educational mission includes the goal of producing future educational, cultural, business, and sociopolitical leaders, the undergraduate experience for each student must include classroom contact with peers of differing racial, ethnic, and cultural backgrounds. The proposal to consider race in the admission process is not an exercise in racial balancing but an acknowledgment that significant differences between the racial and ethnic makeup of the University’s undergraduate population and the state’s population prevent the University from fully achieving its mission. In short, from a racial, ethnic, and cultural standpoint, students at the University are currently being educated in a less-than-realistic environment that is not conducive to training the leaders of tomorrow. For the University to adequately prepare future leaders, it must include a critical mass of students from traditionally underrepresented backgrounds. Critical mass, which is an adequate representation of minority students to assure educational benefits deriving from diversity, affects in a positive way all students because they learn that there is not “one” minority or majority view. In addition, the [Supreme] Court recognized that critical mass is essential in order to avoid burdening individuals with the role of “spokespersons” for their race or ethnicity. Thus, there is a compelling educational interest for the University not to have large numbers of classes in which there are no students— or only a single student — of a given underrepresented race or ethnicity. The use of race-neutral policies and programs has not been successful in achieving a critical mass of racial diversity at The University of" }, { "docid": "16445622", "title": "", "text": "Properly Denied Young’s Motion for Judgment as a Matter of Law on the Racial Discrimination Claim Defendants argue that they could not be held liable for intentionally discriminating on the basis of. race under § 1981, because the name “Manny” is not a racial epithet. We disagree with Defendants’ premise. Their contention that actionable race discrimination must be based on physical or “genetically determined characteristics such as skin color” ignores the broad reach of § 1981. In Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987), the United States Supreme Court explained that “a distinctive physiognomy is not essential to qualify for § 1981 protection.” Rather, the section was “intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” Id. A group’s ethnic characteristics encompass more than its members’ skin color and physical traits. Names are often a proxy for race and ethnicity. See Orhorhaghe v. INS, 38 F.3d 488, 498 (9th Cir.1994) (recognizing that “discrimination against people who possess surnames identified with particular racial or national groups is discrimination on the basis of race or national origin.”) (citation omitted). In Manatt v. Bank of America, 339 F.3d 792, 794-95 (9th Cir.2003), we identified two incidents of racial derogation directed at a Chinese woman. One instance occurred when other employees ridiculed the woman for mispronouncing “Lima,” and the other consisted of employees pulling their eyes back with their fingers in mocking imitation of the appearance of Asians. Id. at 798. Although the second instance is an example of discrimination directed at a genetically-determined physical trait, the first is not. In the first instance, the coworkers were ridiculing the woman’s language and pronunciation rather than a physical characteristic. Thus, Defendants misread Manatí when they cite it for the proposition that racial discrimination must be based solely on physical traits. We also reject Defendants’ contention that Young’s conduct was not frequent or pervasive enough to create a hostile work environment. It is true that “[c]onduct that is not severe or pervasive enough" }, { "docid": "8637173", "title": "", "text": "My concern is that Supreme Court precedent, and in particular the decision in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007), does not permit a school district to institute a plan to diversify student populations of a school district on the basis of race. In Part III.B of Seattle, Chief Justice Roberts, in his plurality opinion, concluded that school attendance plans “directed only to racial balance, pure and simple,” are illegitimate. Id. at 726, 127 S.Ct. 2738. The plurality goes on to ask how we differentiate between the benefits that flow from racial diversity and racial balance pure and simple. Id. My concern is that we will be unable to do so. For that reason, any plan for student diversity is faced with the threat of being held unconstitutional because we cannot compute the difference between racial diversity and racial balance. Justice Kennedy, in his concurrence, endorses diversity as a compelling educational goal. Id. at 783, 127 S.Ct. 2738. He joins in the judgment, however, because the school district plans for diversity in Seattle were directed at individual students, not at neighborhoods as is the case here. Id. at 782, 127 S.Ct. 2738. My concern is that the consideration of the racial composition of individual neighborhoods to determine school assignments may be just as problematic as the consideration of the race of individual students. Plan 3R does involve race: not the race of individuals but the racial balance of neighborhoods. An awareness of the racial make-up of the neighborhoods is a factor in the assignment plan. This consideration of the racial composition of neighborhoods is, in my opinion, a parallel to the consideration of the race of the individual. It in effect brings consideration of race back into the formula. Moreover, the plaintiffs contend that Plan 3R discriminated against them because it mandated their attendance at a particular high school on the basis of their race. Although they were not individually assigned to a school, the court did find that plaintiffs’ race, through the racial composition of" }, { "docid": "14972744", "title": "", "text": "It is no exaggeration to say that the college application is 18 years in the making and is an unusually personal experience: the application presents a student’s best self in the hopes that her sustained hard work and experience to date will be rewarded with admission. Race-based preferences break faith with this expectation by favoring a handful of students based on a trait beyond the control of all. See Bakke, 438 U.S. at 361, 98 S.Ct. 2733 (opinion of Brennan, White, Marshall & Blackmun, JJ.) (“[Ajdvancement sanctioned, sponsored, or approved by the State should ideally be based on individual merit or achievement, or at least on factors within the control of the individual .... ”). Given the highly personal nature of the college admissions process, this kind of class-based discrimination poses an especially acute threat of resentment and its corollary — entitlement. More fundamentally, it “assures that race will always be relevant in American life, and that the ultimate goal of eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race will never be achieved.” Croson, 488 U.S. at 495, 109 S.Ct. 706 (citation and internal quotation marks omitted). Yesterday’s racial discrimination was based on racial preference; today’s racial preference results in racial discrimination. Changing the color of the group discriminated against simply inverts, but does address, the fundamental problem: the Constitution prohibits all forms of government-sponsored racial discrimination. Grutter puts the Supreme Court’s imprimatur on such ruinous behavior and ensures that race will continue to be a divisive facet of American life for at least the next two generations. Like the plaintiffs and countless other college applicants denied admission based, in part, on government-sponsored racial discrimination, I await the Court’s return to constitutional first principles. . The Court’s discussion of race as a \"plus” factor takes place in the context of strict scrutiny’s narrow tailoring inquiry. Whether race should be considered at all is a separate, more fundamental, matter. See infra Section III. . Although I do not believe the government's use of race in university admissions can ever serve a compelling interest, assuming that it" }, { "docid": "14972743", "title": "", "text": "2264, 135 L.Ed.2d 735 (1996) (“Supposed ‘inherent differences’ are no longer accepted as a ground for race or national origin classifications.”); Shaw, 509 U.S. at 647, 113 S.Ct. 2816 (rejecting the notion “that members of the same racial group — regardless of their age, education, economic status, or the community in which they live — think alike, share the same ... interests,” or have a common viewpoint about significant issues); Wygant, 476 U.S. at 316, 106 S.Ct. 1842 (Stevens, J., dissenting) (the “premise that differences in race, or the color of a person’s skin, reflect real differences ... is utterly irrational and repugnant to the principles of a free and democratic society”). I do not see how racial discrimination in university admissions is any less repugnant to the Constitution. If anything, government-sponsored discrimination in this context presents an even greater threat of long-term harm. For the most part, college admissions is a zero-sum game. Whenever one student wins, another loses. The entire competition, encouraged from age five on, is premised on individual achievement and promise. It is no exaggeration to say that the college application is 18 years in the making and is an unusually personal experience: the application presents a student’s best self in the hopes that her sustained hard work and experience to date will be rewarded with admission. Race-based preferences break faith with this expectation by favoring a handful of students based on a trait beyond the control of all. See Bakke, 438 U.S. at 361, 98 S.Ct. 2733 (opinion of Brennan, White, Marshall & Blackmun, JJ.) (“[Ajdvancement sanctioned, sponsored, or approved by the State should ideally be based on individual merit or achievement, or at least on factors within the control of the individual .... ”). Given the highly personal nature of the college admissions process, this kind of class-based discrimination poses an especially acute threat of resentment and its corollary — entitlement. More fundamentally, it “assures that race will always be relevant in American life, and that the ultimate goal of eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race will" }, { "docid": "22728222", "title": "", "text": "The test also ensures that the means chosen ‘fit’ this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.” Croson, supra, at 493 (plurality opinion of O’Connor, J.). We adhere to that view today, despite the surface appeal of holding “benign” racial classifications to a lower standard, because “it may not always be clear that a so-called preference is in fact benign,” Bakke, supra, at 298 (opinion of Powell, J.). “[M]ore than good motives should be required when government seeks to allocate its resources by way of an explicit racial classification system.” Days, Fullilove, 96 Yale L. J. 453, 485 (1987). Second, Metro Broadcasting squarely rejected one of the three propositions established by the Court’s earlier equal protection cases, namely, congruence between the standards applicable to federal and state racial classifications, and in so doing also undermined the other two — skepticism of all racial classifications and consistency of treatment irrespective of the race of the burdened or benefited group. See supra, at 223-224. Under Metro Broadcasting, certain racial classifications (“benign” ones enacted by the Federal Government) should be treated less skeptically than others; and the race of the benefited group is critical to the determination of which standard of review to apply. Metro Broadcasting was thus a significant departure from much of what had come before it. The three propositions undermined by Metro Broadcasting all derive from the basic principle that the Fifth and Fourteenth Amendments to the Constitution protect persons, not groups. It follows from that principle that all governmental action based on race — a group classification long recognized as “in most circumstances irrelevant and therefore prohibited,” Hirabayashi, 320 U. S., at 100 — should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed. These ideas have long been central to this Court’s understanding of equal protection, and holding “benign” state and federal racial classifications to different standards does not square with them. “[A] free people whose institutions are founded" }, { "docid": "22037245", "title": "", "text": "case involves the use of a molecular biology technique called restriction fragment length polymorphism (RFLP). The RFLP procedure isolates DNA in a blood sample so that scientists can locate the VNTRs in that DNA. Using this technique, molecular biologists can detect differences in DNA by analyzing size and length variations between the VNTR alleles of the suspect’s blood and of the crime-scene sample blood. They then compare visually and with a computer program the resulting sizes of the DNA band patterns. Finally, they attempt to determine whether there is a “match” by analyzing whether it is likely or unlikely that a known sample and an unknown sample come from the same source, or whether the results are inconclusive. After the RFLP procedure is completed and a match is found, the lab makes a statistical estimate of the rarity of the pattern of DNA bands found in the suspect’s sample. By conducting DNA studies on FBI agents, the FBI has developed a table of DNA allele frequencies for each of three racial groups— Caucasian, black and hispanic — using a “fixed-bin method,” in which the lab divides up the size of the alleles into bins. Although these population studies are broken down by racial groups, they are not further divided into ethnic subpopulation within these groups, such as (within the Caucasian group) Polish or Italian. The forensic scientist uses these tables to determine the frequency of each allele in the particular suspect’s sample. To estimate the frequency of a suspect’s overall DNA pattern, the individual allele frequencies are multiplied together, using a multiplication or product rule, to compute an aggregate estimate of the probability that this combination of alleles in the suspect’s DNA sample would be encountered in a particular racial population. This comparison highlights the significance of a DNA- “match” by determining the frequency with which the particular genetic traits, or alleles, of the suspect are observed in a particular racial population. B. Use of DNA Evidence in this Case On April 7,1989, the FBI’s DNA, laboratory submitted a report stating that there was a “match” of DNA profiles from" }, { "docid": "171052", "title": "", "text": "about affirmative action, for instance, often merge “black” and \"Hispanic” into \"minority.” See, e.g., Ford Fessenden & Josh Keller, How Minorities Have Fared in States with Affirmative Action Bans, N.Y. Times (June 24, 2013), http://www.nytim.es. com/interactive/2013/06/24/us/affirmative-action-bans.html. . This tendency surfaced, for instance, in coverage of Ricci v. DeStefano, 557 U.S. at 557, 129 S.Ct. 2658, in which the plaintiffs were eighteen firefighters, whom media reports often described as simply white, even though one of the plaintiff firefighters was Hispanic. See, e.g., Robert Barnes, Justices Rule in Favor of White Firefighters in Racial-Bias Case, Wash. Post (June 30, 2009), http:// www.washingtonpost.com/wp-dyn/content/ article/2009/06/29/AR2009062901608.html. Academic discussion of the case sometimes makes the same elision. See, e.g., Reva B. Siegel, Foreword: Equality Divided, 127 Harv.L.Rev. 1, 52 (2013). . See D’Vera Cohn, Census Considers New Approach to Asking About Race—By Not Using the Term at All, Pew Research Ctr. (June 18, 2015), http://www.pewresearch.org/facf-tank/ 2015/06/18/census-considers-newapproach-to-asking-about-race-by-not-using-the-term-at-all. . Until 1930, Mexicans had been presumed to be white. Enumerators for the 1930 Census, however, were instructed that \"all Mexican laborers are of a racial mixture difficult to classify”; at the same time, Mexicans who were \"definitely white, Negro, Indian, Chinese, or Japanese” were to be counted in those respective categories. After the 1930 Census, Mexican-Americans — backed by the Mexican government — successfully lobbied to eliminate the \"Mexican” category, largely because many civil rights, including the right to become an American citizen, depended on whiteness. See Humes & Hogan, ante note 13, at 117; cf. Morrison v. People of State of Cal., 291 U.S. 82, 85, 54 S.Ct. 281, 78 L.Ed. 664 (1934) (noting that \"[t]he privilege of naturalization is confined to aliens who are 'free white persons, and to aliens of African nativity and to persons of African descent,' ” a definition that excluded people of Chinese, Japanese, Indian, American Indian, and Filipino descent (quoting 8 U.S.C. § 359)); id. at 95 n. 5, 54 S.Ct. 281 (“There is a strain of Indian blood in many of the inhabitants of Mexico as well as in the peoples of Central and South America.... Whether persons of such descent" }, { "docid": "12095177", "title": "", "text": "commentary points out that there are three differences between a Sixth-Amendment right to “a representative cross-section of the population\" on a jury panel and an equal-protection right that no \"cognizable racial group\" be purposely excluded: (1) Only a member of the excluded group can assert an equal-protection violation; (2) “only the exclusion of racial classes can be challenged under Batson ”; and (3) “Batson has no immediate effect upon the [defense’s] use of peremptory challenges] in a racially discriminatory manner.” See Uelmen, Striking Jurors Under Batson v. Kentucky, 2 Criminal Justice (published by A.B.A. for its Section of Criminal Justice) 3-4 (Fall 1987). The en banc United States Army Court of Military Review has recently discussed in detail applicability of Batson to trials by court-martial. See United States v. Moore, 26 M.J. 692 (1988), pet. filed, 26 M.J. 311 (Daily Journal June 1, 1988). . See also Hernandez v. Texas, 347 U.S. 475, 476, 74 S.Ct. 667, 669, 98 L.Ed. 866 (1954) (exclusion of “persons of Mexican descent” from jury service). . Statutory provision is made for obtaining \"unemployment data relating to Americans of Spanish origin or descent.” See 29 U.S.C. § 8. The Department of Commerce was required to \"implement an affirmative action program within the Bureau of the Census for the employment of personnel of Spanish origin or descent.” Pub.L.No. 94-311, § 6, 90 Stat. 688, 689 (1976). . In Webster’s New Collegiate Dictionary 950 (1977), one definition of \"race” is \"a division of mankind possessing traits that are transmissible by descent and sufficient to characterize it as a distinct human type.” Other definitions include “a family, tribe, people, or nation belonging to the same stock”; and \"a class or kind of people unified by community of interests, habits, or characteristics.” According to Black’s Law Dictionary 1132 (5th ed. 1979), \"Race” is: \"An ethnical stock; a great division of mankind having in common certain distinguishing physical peculiarities constituting a comprehensive class appearing to be derived from a distinct primitive source.” . As the Supreme Court observed in Batson: In deciding whether the defendant has made the requisite showing," }, { "docid": "23047300", "title": "", "text": "the exercise of the state police power to promote and protect public health, morals, better education and the peace and good order in the State, and not because of race.” There is also the new pupil assignment law which we have already discussed. Appellant nowhere in its brief undertakes to explain the process of reasoning by which it seeks to have this Court conclude that racial segregation in the schools is any less segregation “because of race” merely because the stated basis of adhering to the policy is in the exercise of the State’s police power. Nor does the brief filed by the Attorney General of Louisiana discuss the issue. However, the affidavits introduced on the hearing for preliminary injunction make clear what the briefs do not. They deal with the alleged disparity between the two races as to intelligence ratings, school progress, incidence of certain diseases, and percentage of illegitimate births, in all of which statistical studies one race shows up to poor advantage. This represents an effort to justify a classification of students by race on the grounds that one race possesses a higher percentage of undesirable traits, attributes or conditions. Strangely enough there seems never to have been any effort to classify the students of the Orleans Parish according to the degree to which they possess these traits. That is, there seems to have been no attempt to deny schooling to, or to segregate from other children, those of illegitimate birth or having social diseases or having below average intelligence quotients or learning ability because of those particular facts. Whereas any reasonable classification of students according to their proficiency or health traits might well be considered legitimate within the normal constitutional requirements of equal protection of the laws it is unthinkable that an arbitrary classification by race because of a more frequent identification of one race than another with certain undesirable qualities would be such reasonable classification. The use of the term police power works no magic in itself. Undeniably the States retain an extremely broad police power. This power, however, as everyone knows, is itself limited" } ]

[ { "docid": "22159664", "title": "", "text": "entitled to priority over the claim for the attorney’s fee under Rule 4:55-7 (c). We intimate no view as to the disposition the state court may wish to make of the fund set aside for the principal, interest, and costs, exclusive of attorney’s fee. That is a matter of state law. United States v. New Britain, supra, at 88. Reversed and remanded. Mr. Justice Douglas dissents. These provisions state: 26 U. S. C. § 6321. Lien for taxes. “If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.” 26 U. S. C. § 6322. Period of lien. “Unless another date is specifically fixed by law, the lien imposed by section 6321 shall arise at the time the assessment is made and shall continue until the liability for the amount so assessed is satisfied or becomes unenforceable by reason of lapse of time.” 26 U. S. C. § 6323. Validity . against mortgagees, pledgees, purchasers, and judgment creditors. “(a) Invalidity of lien without notice. “Except as otherwise provided in subsections (c) and (d), the lien imposed by section 6321 shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the Secretary or his delegate— “(1) Under State or Territorial laws. “In the office designated by the law of the State or Territory in which the property subject to the lien is situated, whenever the State or Territory has by law designated an office within the State or Territory for the filing of such notice; or “(2) With clerk of district court. “In the office of the clerk of the United States district court for the judicial district in which the property subject to the lien is situated, whenever the State or Territory has not by law" } ]

[ { "docid": "4747715", "title": "", "text": "any purchaser, holder of a security interest, mechanic’s lienor, or judgment lien creditor” until proper notice is filed. If proper notice is filed, then the resolution of the conflicting claims is controlled by the traditional “first in time, first in right” principle. Urban Indus., Inc. v. Thevis, 670 F.2d 981, 984 (11th Cir.1982). IFC argues that since it recorded its default judgment six (6) hours before IRS filed its Notice of Tax Lien, it has priority over the federal tax lien. However, IFC has failed to properly perfect its judgment. Treasury Regulations § 301.6323(h)-l states that: A judgment lien creditor is a person who has perfected a lien under the judgment on the property involved____ If under local law levy or seizure is necessary before a judgment lien becomes effective against third parties acquiring liens on personal property, then a judgment lien under local law is not perfected until a levy or seizure of the personal property involved. (Emphasis supplied). In the state of Florida, the proper recording of a judgment does not create a lien on the personal property of the judgment debtor. In re Belize Airways, Ltd., 20 B.R. 817 (S.D.Fla.1983). Florida adheres to the common law rule that a lién is obtained on the personal property of a debtor only when a writ of execution is delivéred to the sheriff of the county in which the property is located. Goodyear Tire & Rubber Co. v. Daniell, 72 Fla. 489, 73 So. 592 (1916); Black v. Miller, 219 So.2d 106 (Fla. 3rd DCA 1969); In re Belize Airways, Ltd., 20 B.R. 817 (S.D.Fla.1983). Therefore, until a judgment creditor delivers a writ of execution, the judgment creditor has not perfected its lien. In the instant case, IRS’s Notice of Federal Tax Lien in the amount of $36,868.59 was filed on December 27, 1991. Although IFC properly recorded its judgment before IRS’s Notice of Federal Tax Lien, it did not perfect its judgment by obtaining a writ of garnishment or writ of execution until after December 27, 1991. Consequently, IRS’s tax lien has priority over IFC’s judgment. III. CONCLUSION Based" }, { "docid": "21054349", "title": "", "text": "at 256-257, 98 S.Ct. at 1790. In a footnote, the Court observed that “Under the UCC, a perfected security interest is superior to a judgment lien creditor’s claim in the property, see UCC §§ 9-301; 9-312.” Id. at 258 n.22, 98 S.Ct. at 1790 n.22. The Court thus linked the language of § 6323(h)(i)(A) with the notion of perfection under the U.C.C. The Fifth Circuit also has said that “§ 6323 specifically subordinates federal tax liens to security interests . . . that are perfected under the U.C.C. provisions of state law prior to the filing of the tax lien.” Aetna Insur. Co. v. Texas Thermal Industries, Inc., 591 F.2d 1035, 1038 (5th Cir. 1979). Treasury regulations also indicate that § 6323(h)(1) was meant to include perfected interests. Treas.Reg. § 301.6323(h)-1(a)(2) (1976) says “a security interest is deemed to be protected against a subsequent judgment lien on the date on which all actions required under local law to establish the priority of a security interest against a judgment lien have been taken.” The phrase “actions required under local law to establish the priority of a security interest” generally describes the process of perfection. Finally, the government’s interpretation of § 6323(h)(1) is contrary to Congress’ intent, expressed in the Federal Tax Lien Act, to improve the position of the private secured creditor in the face of a federal tax lien on the secured property. If § 6323(h)(1) requires the security interest to be protected against “any hypothetical judgment lien creditor,” then no security interest perfected under the U.C.C. would qualify. Sections 9-307 through 9-310 of the U.C.C. describe various situations in which prior, perfected security interests can be defeated by a subsequent claim to the secured property. There was no error in the district court’s interpretation or application of § 6323. AFFIRMED." }, { "docid": "17800369", "title": "", "text": "op. at 1 (Cir.Ct. Marathon County, Branch IV, Oct. 11, 1984) (order granting United States’ motion to intervene). . Wagner v. United States, 573 F.2d 447 (7th Cir.1978), another case the state relies upon, is distinguishable for the same reason: the federal government had not perfected its lien by filing a notice of lien before the competing claimants had perfected their liens. . The United States cites both federal and state law as support for its argument that the Wisconsin Department of Revenue could not obtain judgment creditor status with respect to Bar Coat’s contract rights until the department obtained final judgment in its garnishment action. Treasury Department regulations specify that in order to qualify as a judgment lien creditor, a creditor competing with a federal lien must have \"obtained a valid judgment, in a court of record and competent jurisdiction, for the recovery of specifically designated property or for a certain sum of money.” 26 C.F.R. § 301.-6323(h)-l(g). Under Wisconsin law, the docketing of a warrant for delinquent state taxes is treated as a final judgment. Wis.Stat. § 71.13(3)(b). Final judgments create a perfected lien upon real property, but not upon personal property. Wis. Stat. § 806.15. The United States argues that the state of Wisconsin is required to take additional steps to acquire a judgment lien upon personal property. The judgment lien procedures do not affect the priority of interests in this case. While the state may not have a perfected judgment lien upon personal property until it obtains judgment in a garnishment action, the state’s assessment of taxes against Bar Coat gives rise to a perfected tax lien upon all of Bar Coat’s property. Wis.Stat. § 71.13(2m). The state’s perfected tax lien establishes its priority of interest against competing creditors. The state court garnishment proceedings are simply the administrative process through which the state enforces its claim to personal property." }, { "docid": "113933", "title": "", "text": "lienholder had no notice of the government’s claim. Cf. United States v. City of New Britain, 347 U.S. 81, 84-88, 74 S.Ct. 367, 369-371, 98 L.Ed. 520 (1954). Although it has retained this basic scheme of priority for most competing general liens throughout the history of the Internal Revenue Code, Congress in the last fifty years has chosen to extend special protection to certain classes of creditors whose interests are perfected and specific before they have notice of outstanding federal tax liens. See 26 U.S.C. § 6323(a). One such protected class is the “judgment lien creditor.” The priority of a judgment creditor’s lien over a federal tax assessment is determined from the time the government files its notice of a lien with appropriate state officials, rather than from the time of its demand for payment. 26 U.S.C. § 6323(a). A qualifying creditor’s rights are superior as long as his judgment is perfected before the government gives constructive notice of its right to the delinquent taxpayer’s assets. Congress’ purpose in imposing the notice requirement on the government was to protect the perfected interests of innocent third parties from “secret tax liens.” Gilbert Associates, 345 U.S. at 363-64, 73 S.Ct. at 703. The dispute between the parties in this appeal turns on whether Air Power qualifies as a “judgment lien creditor” for the purposes of special lien priority under section 6323(a). The IRS regulations implementing this statutory provision define a “judgment lien creditor” as: ... a person who has obtained a valid judgment, in a court of record and of competent jurisdiction, for the recovery of specifically designated property or for a certain sum of money ... [and] who has perfected a lien under the judgment on the property involved____ 26 C.F.R. § 301.6323(h)-l(g) (emphasis supplied). The “court of record” requirement, which was the basis of the ruling below in favor of the United States, originates from the Supreme Court’s decision in United States v. Gilbert Associates, 345 U.S. 361, 73 S.Ct. 701, 97 L.Ed. 1071. In that case, the Town of Walpole, New Hampshire administratively assessed a local tax lien against" }, { "docid": "8421408", "title": "", "text": "and the later Domesticated judgment. If Miller were a “judgment hen creditor,” and his status as such was acquired prior to June 30, 1993, when the United States recorded its federal tax hens, Miller would be entitled to priority over the government. At the risk of redundancy, this is so because § 6323(a) provides a measure of protection against “secret hens” for purchasers, holders of security interests, mechanics lienors, and judgment hen creditors if their interest attaches before the Government files appropriate notice. Thus, while a hen attaches to a taxpayer’s property at the time of assessment, the hen is not enforceable against judgment hen creditors of the taxpayer until the United States files notice as set forth in the statutory scheme. If the United States fails to promptly file its notice, intervening judgment hen creditors prevail over the tax hen. A “judgment hen creditor,” undefined by federal statute, is described in treasury regulations as “a person who has obtained a valid judgment ... for the recovery of ... a certain sum of money.... [and as] a person who has perfected a hen under the judgment on the property involved.” 26 C.F.R. § 301.6323(h)-l(g). “In determining ... whether a judgment creditor’s hen is perfected ..., we look first to the local law setting forth the hen procedure and its legal consequences.” United States v. Bess, 357 U.S. 51, 55-56, 78 S.Ct. 1054, 1057-58, 2 L.Ed.2d 1135 (1958); Hartford Provision Co. v. United States, 579 F.2d 7, 9 (2d Cir.1978); Waste Management of Missouri, Inc. v. Evert, 188 F.3d 1002 (8th Cir.1999) (“.. .state law governs what constitutes a perfected lien.”); United States v. Dishman Independent Oil, Inc., 46 F.3d 523, 526 (6th Cir.1995) (“... the task of determining what constitutes a perfected lien is usually-governed by state law.”). Under Indiana law, a judgment lien relating to real property is not “perfected” against third parties until it is entered and indexed in the judgment docket. Ind.Code § 34^-55 — 9—2; Treas.Reg. § 301.6323(h)-1(g). Through their stipulated filing the parties agree that Miller’s judgment was entered into the Circuit Court Judgment Docket" }, { "docid": "7028369", "title": "", "text": "(5th Cir.1980). However, under 26 U.S.C. § 6323(a), certain persons are protected against unrecorded federal tax liens. Section 6323(a) provides: The lien imposed by section 6321 shall not be valid as against any purchaser, holder of a security interest, mechanic’s lienor, or judgment lien creditor until notice thereof which meets the requirement of subsection (f) has been filed by the Secretary. Only those persons specifically listed in the statute are entitled to priority over unrecorded federal tax liens. See 14 Mertens, Law of Federal Income Taxation § 15A.03, at 15-16 (1991). During oral argument, Gidron contended that he is a “judgment lien creditor” by virtue of the stipulation of settlement dated December 11, 1985, which he argues was a judgment entered in the Bronx County court. If Gidron were a “judgment lien creditor,” and his status as such was acquired prior to December 5 and 8, 1988, when the government recorded its federal tax liens, Gidron would be entitled to priority over the government. A “judgment lien creditor,” undefined by statute, is described in treasury regulations as a person who has obtained a valid judgment ... for the recovery of ... a certain sum of money.... [and as] a person who has perfected a lien under the judgment on the property involved. 26 C.F.R. § 301.6323(h)-l(g). “In determining ... whether a judgment creditor’s lien is perfected ..., we look first to the local law setting forth the lien procedure and its legal consequences.” Hartford Provision Co. v. United States, 579 F.2d 7, 9 (2d Cir.1978). Under New York law, a judgment creditor becomes a “judgment lien creditor” as to personal property only after execution is delivered to the sheriff. See N.Y.Civ.Prac.L. & R. § 5202(a) (McKinney 1978); see also Corwin Consultants, Inc. v. Interpublic Group of Companies, Inc., 512 F.2d 605, 607 n. 2 (2d Cir.1975). Since there is no evidence that the stipulation of settlement was reduced to and docketed as a judgment, see 749 F.Supp. at 81 n. 1, and there is no evidence of the delivery of a judgment execution to the sheriff, clearly, under the New" }, { "docid": "4747714", "title": "", "text": "of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986); Real Estate Financing v. Resolution Trust Corporation, 950 F.2d 1540, 1542 (11th Cir.1992); McGahee v. Northern Propane Gas Co., 858 F.2d 1487, 1493 (11th Cir.1988); Cubbage v. Averett, 626 F.2d 1307, 1308 (5th Cir.1980). B. Analysis State law governs to what extent a person has property rights to which a federal tax lien may attach. Tompkins v. United States, 946 F.2d 817 (11th Cir.1991). However, federal law governs the priority of a tax lien against other claims to property. Id. at 820; Atlantic States Const. v. Hand, Arendall, et al., 892 F.2d 1530 (11th Cir.1990). A federal tax lien attaches to “all property and rights to property, whether real or personal, belonging to such person.” 26 U.S.C. § 6321. Priority among a federal tax lien and other lien holders is determined by section 6323 of the Internal Revenue Code (“I.R.C.”). Section 6323(a) states that a federal tax lien “shall not be valid as against any purchaser, holder of a security interest, mechanic’s lienor, or judgment lien creditor” until proper notice is filed. If proper notice is filed, then the resolution of the conflicting claims is controlled by the traditional “first in time, first in right” principle. Urban Indus., Inc. v. Thevis, 670 F.2d 981, 984 (11th Cir.1982). IFC argues that since it recorded its default judgment six (6) hours before IRS filed its Notice of Tax Lien, it has priority over the federal tax lien. However, IFC has failed to properly perfect its judgment. Treasury Regulations § 301.6323(h)-l states that: A judgment lien creditor is a person who has perfected a lien under the judgment on the property involved____ If under local law levy or seizure is necessary before a judgment lien becomes effective against third parties acquiring liens on personal property, then a judgment lien under local law is not perfected until a levy or seizure of the personal property involved. (Emphasis supplied). In the state of Florida, the proper recording of a judgment does not create a" }, { "docid": "16702132", "title": "", "text": "its security interest was specific in the accounts receivable and protected against an unsecured creditor under South Dakota law. I.R.C. § 6323 limits Section 6321’s tax lien impact on holders of perfected security interests in a debtor’s property. The IRS’s interest is inchoate against such creditors until the tax lien notice is properly filed. 26 U.S.C. § 6323(a). The IRS’s April 3, 1989, lien perfected the government’s interest. Section 6323(c), interpreted by 26 C.F.R. § 301.6323(c)-l, preserves the priority of certain perfected security interests in property acquired by the debtor prior to or during the 45-day period post-federal-tax-lien filing and in the proceeds of that property. First Bank perfected its interest before the IRS filed its tax lien notice. The instant matter pits First Bank against the IRS over the application of 26 U.S.C. § 6323(c) to the accounts receivable acquired by May after tax lien filing. Section 6323(c) specifically addresses accounts receivable in terms of protection for certain commercial transactions financing agreements. 26 U.S.C. § 6323(c) states the following: (c) Protection for certain commercial transactions financing agreements, etc.— (1) In general. — To the extent provided in this subsection, even though notice of a lien imposed by section 6321 has been filed, such lien shall not be valid with respect to a security interest which came into existence after tax lien filing but which— (A) is in qualified property covered by the terms of a written agreement entered into before tax lien filing and constituting— (i) a commercial transactions financing agreement, (ii) a real property construction or improvement financing agreement, or (iii) an obligatory disbursement agreement, and (B) is protected under local law against a judgment lien arising, as of the time of tax lien filing, out of an unsecured obligation. (2) Commercial transactions financing agreement. — For purposes of this subsection— (A) Definition. — The term “commercial transactions financing agreement” means an agreement (entered into by a person in the course of his trade or business)— (i) to make loans to the taxpayer to be secured by commercial financing security acquired by the taxpayer in the ordinary course" }, { "docid": "113934", "title": "", "text": "government was to protect the perfected interests of innocent third parties from “secret tax liens.” Gilbert Associates, 345 U.S. at 363-64, 73 S.Ct. at 703. The dispute between the parties in this appeal turns on whether Air Power qualifies as a “judgment lien creditor” for the purposes of special lien priority under section 6323(a). The IRS regulations implementing this statutory provision define a “judgment lien creditor” as: ... a person who has obtained a valid judgment, in a court of record and of competent jurisdiction, for the recovery of specifically designated property or for a certain sum of money ... [and] who has perfected a lien under the judgment on the property involved____ 26 C.F.R. § 301.6323(h)-l(g) (emphasis supplied). The “court of record” requirement, which was the basis of the ruling below in favor of the United States, originates from the Supreme Court’s decision in United States v. Gilbert Associates, 345 U.S. 361, 73 S.Ct. 701, 97 L.Ed. 1071. In that case, the Town of Walpole, New Hampshire administratively assessed a local tax lien against a company facing a similar tax lien from the United States government. The town claimed priority over the federal tax lien because its assessment was perfected under state law before the United States filed the notice of its own lien, as required by the predecessor statute to section 6323. The United States conceded its filing was later in time, but argued that the town was not a “judgment creditor” within the meaning of the applicable statute, and thus not entitled to notice of the pre-existing lien. The Supreme Court agreed, explaining that the need for uniformity in defining “judgment creditor” required that the effect of the state’s tax assessment on the federal priority question be determined according to federal law: A cardinal principle of Congress in its tax scheme is uniformity, as far as may be. Therefore, a “judgment creditor” should have the same application in all the states. In this instance, we think Congress used the words “judgment creditor” in § 3672 [predecessor to § 6323] in the usual, conventional sense of a judgment" }, { "docid": "16617230", "title": "", "text": "any effect on the estate being administered in bankruptcy.” Fietz, 852 F.2d at 457 (citing Pacor, 743 F.2d at 994). Any change that occurred during the pendency of this action with regard to the origin of this court’s jurisdiction “from arising in a case under title 11” to “related to” jurisdiction would not have been sufficient to alter the test for “related to” jurisdiction. By continuing to prosecute the litigation through trial in this matter after the real property was sold, each party consented to this court’s entry of final judgment under 28 U.S.C. § 157(c)(2). B. Substantive Law on Priorities Under the Internal Revenue Code, a tax lien arises at the time of assessment, 26 U.S.C. § 6322, on “all property and rights to property, whether real or personal, belonging to” a delinquent taxpayer. 26 U.S.C. § 6321. The primary power of a tax lien, however, lies not in its effect against the taxpayer, but in its priority vis-á-vis other lienholders and subsequent purchasers. Under the Federal Tax Lien Act, a tax lien is valid as against any subsequent purchaser or holder of a security interest, but only if “notice thereof which meets the requirements of [26 U.S.C. § 6323(f)] has been filed.” 26 U.S.C. § 6323(a); see also United States v. Pioneer Am. Ins. Co., 374 U.S. 84, 88, 83 S.Ct. 1651, 10 L.Ed.2d 770 (1963) (stating that a tax lien notice is not valid against real property until placed in the public record); and TREas. Reg. § 301.6323(a) (“The lien imposed by section 6321 is not valid against any purchaser ... [or] holder of a security interest ... until a notice of lien is filed in accordance with § 301.6323(0-1.”). Section 6323(0 governs the place of filing for tax lien notices, and defers to state law to select the proper office. 26 U.S.C. § 6323(0(l)(A)(i). Nevada has chosen “the office of the county recorder in which the real property subject to the liens is situated.” Nev.Rev.Stat. § 108.827.2. Here, there is no dispute that the real property is in Clark County, Nevada, and that the Clark County" }, { "docid": "11682328", "title": "", "text": "interest became prior by reason of the seller’s default. All this is irrelevant, however, in face of the clear language of the statute, and it was error for the district court to rule for the government and to dismiss the case. 26 U.S.C. § 6323 governs the priority between a federal tax lien and other interests in the property to which the tax lien attaches. The interest of a purchaser of property, as defined in section 6323(h)(6), is superior to the tax lien if the purchaser’s interest is acquired before the government has filed notice of the tax lien. 26 U.S.C. § 6323(a); Treas.Reg. § 301.6323(a)(1); see United States v. Gilbert Associates, Inc., 345 U.S. 361, 363-64, 73 S.Ct. 701, 703-04, 97 L.Ed. 1071 (1953) (noting that purpose of statute is to prevent priority of secret tax liens). In order to qualify as a “purchaser” entitled to priority over a subsequently filed tax lien, a person must, “for adequate and full consideration in money or money’s worth, acquire[] an interest (other than a lien or security interest) in property which is valid under local law against subsequent purchasers without actual notice.” 26 U.S.C. § 6323(h)(6). The statute specifically covers executory contracts such as the one Newnham signed. It states: “[A] written executory contract to purchase or lease property ... which is not a lien or security interest shall be treated as property.” 26 U.S.C. § 6323(h)(6)(B). Newnham was a purchaser and fits squarely under this definition. She had an interest in the property by virtue of her written executory contract to purchase it. The consideration paid by Newnham met the statutory requirements because the term “adequate and full consideration” encompasses a situation in which the purchaser has not completed performance of her obligation. Treas.Reg. § 301.6323(h)-1(f)(3). A cash deposit and obligation to pay all remaining sums in cash constitute “money or money’s worth.” Id. The government does not argue that Newnham’s interest was invalid under local law against a subsequent purchaser without notice; the recordation of the lis pen-dens before the government’s levy was sufficient to ensure this protection. Lee" }, { "docid": "21054348", "title": "", "text": "26 (7th Cir. 1977), to the effect that § 6323(h)(1) requires the security interest to be protected against “any hypothetical judgment lien creditor.” Gedulig held that Manalis security interest was not protected against the state, which thereby becomes a hypothetical judgment lien creditor. Therefore, the government asserts, the security interest cannot be accorded priority under § 6323. We do not agree with that interpretation of § 6323(h)(1). Dragstrem is distinguishable. The question there was whether an unperfected security interest could be prior to a federal tax lien when the United States had actual knowledge of the security interest at the time it filed the lien. Here Manalis’ security interest was properly perfected. Other courts have indicated that the definition in § 6323(h)(1) encompasses perfected security interests. In Slodov v. United States, 436 U.S. 238, 98 S.Ct. 1778, 56 L.Ed.2d 251 (1978), the Supreme Court said in dictum that “the Code specifically subordinates tax liens to the interests of certain others in the property, generally including those with a perfected security interest in the property.” Id. at 256-257, 98 S.Ct. at 1790. In a footnote, the Court observed that “Under the UCC, a perfected security interest is superior to a judgment lien creditor’s claim in the property, see UCC §§ 9-301; 9-312.” Id. at 258 n.22, 98 S.Ct. at 1790 n.22. The Court thus linked the language of § 6323(h)(i)(A) with the notion of perfection under the U.C.C. The Fifth Circuit also has said that “§ 6323 specifically subordinates federal tax liens to security interests . . . that are perfected under the U.C.C. provisions of state law prior to the filing of the tax lien.” Aetna Insur. Co. v. Texas Thermal Industries, Inc., 591 F.2d 1035, 1038 (5th Cir. 1979). Treasury regulations also indicate that § 6323(h)(1) was meant to include perfected interests. Treas.Reg. § 301.6323(h)-1(a)(2) (1976) says “a security interest is deemed to be protected against a subsequent judgment lien on the date on which all actions required under local law to establish the priority of a security interest against a judgment lien have been taken.” The phrase “actions" }, { "docid": "7028370", "title": "", "text": "regulations as a person who has obtained a valid judgment ... for the recovery of ... a certain sum of money.... [and as] a person who has perfected a lien under the judgment on the property involved. 26 C.F.R. § 301.6323(h)-l(g). “In determining ... whether a judgment creditor’s lien is perfected ..., we look first to the local law setting forth the lien procedure and its legal consequences.” Hartford Provision Co. v. United States, 579 F.2d 7, 9 (2d Cir.1978). Under New York law, a judgment creditor becomes a “judgment lien creditor” as to personal property only after execution is delivered to the sheriff. See N.Y.Civ.Prac.L. & R. § 5202(a) (McKinney 1978); see also Corwin Consultants, Inc. v. Interpublic Group of Companies, Inc., 512 F.2d 605, 607 n. 2 (2d Cir.1975). Since there is no evidence that the stipulation of settlement was reduced to and docketed as a judgment, see 749 F.Supp. at 81 n. 1, and there is no evidence of the delivery of a judgment execution to the sheriff, clearly, under the New York requirements, Gidron cannot be a judgment lien creditor. See Lerner v. United States, 637 F.Supp. 679, 680 (S.D.N.Y.1986); In re Estate of Robbins, 74 Misc.2d 793, 795, 346 N.Y.S.2d 86, 90 (Sur.Ct.1973) (“As to personal property, docketing of a judgment [alone] does not create a lien; such a lien upon personal property comes into being only when execution is issued to the proper officer.”). For all persons who are not specifically listed in section 6323, priority as a lienor is determined by the common law rule of “first in time is the first in right.” United States v. City of New Britain, 347 U.S. 81, 87-88, 74 S.Ct. 367, 371-372, 98 L.Ed. 520 (1954). Under that rule, a federal tax lien takes priority over competing liens unless the competing lien was choate, or fully established, prior to the attachment of the federal lien. See id. at 86, 74 S.Ct. at 370. Not only does a lienor’s interest have to be first chronologically, but the interest must be choate to defeat the federal tax lien." }, { "docid": "113929", "title": "", "text": "SPROUSE, Circuit Judge: Air Power, Inc. (Air Power), appeals from the district court’s decision granting a federal tax lien priority over its earlier state judgment lien against properties belonging to VWV Utility Construction Company, Inc. (VWV). The parties agree that Air Power’s judgment lien was perfected under Virginia state law before the United States filed the required notice of its tax lien. 26 U.S.C. § 6323(f). The single issue presented on appeal is whether Air Power’s judgment was secured from a “court of record,” as required by Supreme Court decision and the governing Internal Revenue Service (IRS) regulations, thus entitling Air Power to “judgment lien creditor” status and priority over a later-filed federal tax lien. United States v. Gilbert Associates, 345 U.S. 361, 73 S.Ct. 701, 97 L.Ed. 1071 (1953); 26 C.F.R. § 301.6323(h)-l(g). See also 26 U.S.C. § 6323(a). The district court resolved this issue in favor of the United States, noting that the Virginia legislature has characterized the Virginia general district court from which Air Power secured its judgment as a “court not of record.” VA.CODE § 16.1-69.5(a). We hold that whether a judgment issues from a “court of record” for purposes of section 6323 priority under the Internal Revenue Code is a question of federal law and that application of uniform criteria places the general district courts of Virginia in that category. Accordingly, we reverse. I On April 22, 1982, Air Power secured a prejudgment writ of attachment from the General District Court of Loudon County, Virginia, against personal property belonging to VWV. The identified property was seized two weeks later by the Sheriff in satisfaction of VWV’s $4,803 debt and default judgment was entered in Air Power’s favor soon afterwards for the full amount of the debt. After the required legal notices were given, the general district court authorized the Sheriff to sell the seized property on June 25, 1982, with the proceeds to be paid to Air Power, the judgment lien creditor. Meanwhile, the IRS had demanded payment from VWV for delinquent federal employment taxes. Although VWV failed to respond to its demand in early" }, { "docid": "23557368", "title": "", "text": "12 L.Ed.2d 370 (1964). At the time the United States assessed the contractor’s tax liability, the bank’s security interest was not specific and perfected, in the federal sense, because filing was required to protect the security interest against third party creditors. See United States v. Crest Finance Co., 302 F.2d 568, 569 (7th Cir. 1962), on remand from 368 U.S. 347, 82 S.Ct. 384, 7 L.Ed.2d 342 (1961); cf. United States v. New Britain, 347 U.S. 81, 84, 74 S.Ct. 367, 98 L.Ed. 520 (1954). [A]n unperfected security interest is subordinate to the rights of * * * a person who becomes a lien creditor without knowledge of the security interest and before it is perfected. [Ark.Stat.Ann. § 85-9-301(1) (b)] The 1966 amendments to the Federal Tax Lien Statute expanded the classes of claims which are entitled to priority over federal tax liens. See S.Rep. No. 1708, 89th Cong., 2d Sess. (1966), in 3 U. S. Code Congressional and Administrative News, p. 3722 (1966). Holders of security interests are among those creditors who were granted added protection. Under 26 U.S.C. § 6323(a), a federal tax lien is not valid against the holder of a security interest until the tax lien is filed. Under 26 U.S.C. § 6323(c) (1), certain security interests in specified property take priority over a federal tax lien even if the security in terest comes into existence after the federal tax lien is filed. Significantly, however, Congress extended the added protection only to holders of perfected security interests by defining a security interest as follows : The term “security interest” means any interest in property acquired by contract for the purpose of securing payment or performance of an obligation or indemnifying against loss or liability. A security interest exists at any time (A) if, at such time, the property is in existence and the interest has become protected under local law against a subsequent judgment lien arising out of an unsecured obligation, and (B) to the extent that, at such time, the holder has parted with money or money’s worth. [26 U.S.C. § 6323(h)(1)] See 26 U.S.C." }, { "docid": "16702131", "title": "", "text": "U.S. v. Bank of Celina, 721 F.2d 163, 164 (6th Cir.1983); Sgro v. U.S., 609 F.2d 1259, 1260 (7th Cir.1979). Federal law dictates the priority of the two perfected interests in the instant matter. III. Federal Tax Lien Exemptions. 26 U.S.C. § 6323 enumerates at least 10 transactions where the federal tax lien yields its generally superior lien position. U.C.C. § 9-301(4) enumerates an exemption concerning disbursing advances under a security agreement legislated in 26 U.S.C. § 6323(c)(4). Other exemptions, i.e., concerning securities and motor vehicles, are inapplicable. A narrow exception enjoyed by commercial lenders is pertinent to the instant matter. A. 26 U.S.C. § 6323(c)’s Outline. A creditor seeking to avoid the validity of the federal tax lien shoulders the burden of proof under Section 6323(c). In re Concrete Exp., Inc., 87 B.R. 718, 722 (Bankr.S.D.Fla.1988); Matter of Tunxis Corp., 19 B.R. 256, 260 (Bankr.D.Conn.1982). The creditor must establish that its interest became protected and specific under local law. Ceco Corp. v. U.S., 554 F.Supp. 569, 571 (D.C.Minn.1982). First Bank met its burden, proving its security interest was specific in the accounts receivable and protected against an unsecured creditor under South Dakota law. I.R.C. § 6323 limits Section 6321’s tax lien impact on holders of perfected security interests in a debtor’s property. The IRS’s interest is inchoate against such creditors until the tax lien notice is properly filed. 26 U.S.C. § 6323(a). The IRS’s April 3, 1989, lien perfected the government’s interest. Section 6323(c), interpreted by 26 C.F.R. § 301.6323(c)-l, preserves the priority of certain perfected security interests in property acquired by the debtor prior to or during the 45-day period post-federal-tax-lien filing and in the proceeds of that property. First Bank perfected its interest before the IRS filed its tax lien notice. The instant matter pits First Bank against the IRS over the application of 26 U.S.C. § 6323(c) to the accounts receivable acquired by May after tax lien filing. Section 6323(c) specifically addresses accounts receivable in terms of protection for certain commercial transactions financing agreements. 26 U.S.C. § 6323(c) states the following: (c) Protection for certain commercial" }, { "docid": "8421409", "title": "", "text": "as] a person who has perfected a hen under the judgment on the property involved.” 26 C.F.R. § 301.6323(h)-l(g). “In determining ... whether a judgment creditor’s hen is perfected ..., we look first to the local law setting forth the hen procedure and its legal consequences.” United States v. Bess, 357 U.S. 51, 55-56, 78 S.Ct. 1054, 1057-58, 2 L.Ed.2d 1135 (1958); Hartford Provision Co. v. United States, 579 F.2d 7, 9 (2d Cir.1978); Waste Management of Missouri, Inc. v. Evert, 188 F.3d 1002 (8th Cir.1999) (“.. .state law governs what constitutes a perfected lien.”); United States v. Dishman Independent Oil, Inc., 46 F.3d 523, 526 (6th Cir.1995) (“... the task of determining what constitutes a perfected lien is usually-governed by state law.”). Under Indiana law, a judgment lien relating to real property is not “perfected” against third parties until it is entered and indexed in the judgment docket. Ind.Code § 34^-55 — 9—2; Treas.Reg. § 301.6323(h)-1(g). Through their stipulated filing the parties agree that Miller’s judgment was entered into the Circuit Court Judgment Docket on January 22, 1997. Thus, Miller’s judgment was perfected on January 22, 1997. As a result, it is clear that Miller’s interest did not attach to any interest of Conte prior to 1993 when the United States validly perfected its tax lien, and, more importantly it never attached to Conte’s inheritance in 1992. At best, Miller attached and perfected his judgment lien on January 22, 1997, well after the United States provided notice of its tax lien on Conte’s property. For this reason, the August 1987 Lien is “first in time” and prevails over Miller’s subsequent judgment lien. CONCLUSION Based on the foregoing, both the February 1985 Lien and the August 1987 Lien have priority over Miller’s judgment lien. Miller’s Motion for Partial Summary Judgment is hereby DENIED and the United States’ Motion for Partial Summary Judgment is hereby GRANTED. Having resolved the lien priority issue, all that remains of this case is a final determination as to the amounts due and owing to the parties and payment of such funds to the parties from" }, { "docid": "17800368", "title": "", "text": "of Revenue the amount required by the garnishment judgment, but was withholding payment of the balance of its debt pending the resolution of a dispute with Bar Coat over Bar Coat’s claims for payment. In the second letter, dated June 13, 1984, Thums informed Jeffrey R. Henry of the Internal Revenue Service that because of a disagreement about additional work to be performed under the construction contract, it was not until June 7, 1984 that the City of Schofield approved a final invoice for Bar Coat's performance in the amount of $29,563.41. These letters are unauthenticated documents and inadmissible hearsay, and therefore will not be considered on these motions for summary judgment. Rule 56(e), Federal Rules of Civil Procedure. . The record indicates that at some point after a July 11, 1984 hearing on the United States’ motion to intervene in this action, the Wisconsin Department of Revenue placed the proceeds of Bar Coat's construction contract in the custody of the Marathon County court. State of Wisconsin v. Bar Coat Blacktop, Inc., No. 83-CV-763, slip op. at 1 (Cir.Ct. Marathon County, Branch IV, Oct. 11, 1984) (order granting United States’ motion to intervene). . Wagner v. United States, 573 F.2d 447 (7th Cir.1978), another case the state relies upon, is distinguishable for the same reason: the federal government had not perfected its lien by filing a notice of lien before the competing claimants had perfected their liens. . The United States cites both federal and state law as support for its argument that the Wisconsin Department of Revenue could not obtain judgment creditor status with respect to Bar Coat’s contract rights until the department obtained final judgment in its garnishment action. Treasury Department regulations specify that in order to qualify as a judgment lien creditor, a creditor competing with a federal lien must have \"obtained a valid judgment, in a court of record and competent jurisdiction, for the recovery of specifically designated property or for a certain sum of money.” 26 C.F.R. § 301.-6323(h)-l(g). Under Wisconsin law, the docketing of a warrant for delinquent state taxes is treated as a" }, { "docid": "5133027", "title": "", "text": "To begin: as soon as the IRS assesses tax liability against any person, the amount due becomes a lien in favor of the United States upon any and all property, presently or future owned, real or personal, belonging to the person assessed. 26 U.S. C. § 6321 (1982). This lien, however, is not valid against “any purchaser, holder of a security interest, mechanic’s lienor, or judgment lien creditor” until a notice of the lien is filed in the appropriate place. Id. at § 6323(a). Hence, the IRS lien does not take priority over the delinquent taxpayer’s other lienors until its notice of tax lien is filed in the proper form and with the proper authority. The requirements for the notice of lien are found in § 6323(f). For real property, the notice must be filed in the place designated by the state; in Illinois, that is the county within which the real property is located, here McLean County. The form of the notice of lien is to be determined by the Secretary of the IRS; the notice is valid regardless of any other provision of law regarding form or content of a lien notice. The Secretary of the IRS has promulgated rules pertaining to the proper form and content of the notice pursuant to § 6323(f)(3); at 26 CFR § 301.6323(f)-l(c), the notice of federal tax lien is required to be filed on a “form 668, ‘notice of federal tax lien under Internal Revenue laws.’ ” Further, “form 668” has been defined, at § 301.6323(f)-lT(c)(2), as being a form which “must identify the taxpayer, the tax liability giving rise to the lien, and the date the assessment arose regardless of the method used to file the notice of federal tax lien.” Finally, one further portion of § 6323(f) warrants discussion, and that is subsection (4), which provides that: In the case of real property, if — (A) under the laws of the state in which the real property is located, a deed is not valid as against a purchaser of the property who (at the time of purchase) does not" }, { "docid": "113950", "title": "", "text": "or his delegate. 26 U.S.C. § 6323(a) (emphasis supplied). The predecessor provision to section 6323(a) only provided notice protection to a \"mortgagee, pledgee, purchaser, or judgment creditor.” See Priority of Federal Tax Liens and Levies, Hearings on H.R. 11256 and 11290 Before the House Comm, on Ways and Means, 89th Cong.2d Sess. 37 (March 2, 1966) (Statement of Stanley S. Surrey, Ass't Secretary of Treasury). The 1966 amendments to the Internal Revenue Code expanded this protected group to include mechanic’s lienors and holders of a security interest. These same amendments created \"superpriority” protection for certain creditors whose interests arose before notice of the federal tax lien, but were not choate until after notice was received. See 26 U.S.C. § 6323(b), (c) and (d). These changes were designed to increase the protection afforded private sector creditors and to modernize the relationship between federal tax liens and other commercial creditors. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 738, 99 S.Ct. 1448, 1463, 59 L.Ed.2d 711 (1979). . Courts generally look to state law in determining whether a competing state court lien is perfected or choate against third party creditors, but federal law governs the actual legal effect of the judgment for tax priority purposes. See Hartford Provision Co. v. United States, 579 F.2d 7, 9 (2d Cir.1978). See also 26 C.F.R. § 301.-6323(h)-l(g). Additionally, certain threshold federal requirements of choateness must be satisfied before the lien can qualify for priority treatment. See United States v. City of New Britain, 347 U.S. 81, 84, 74 S.Ct. 367, 369, 98 L.Ed. 520 (1954). . Under the predecessor statute to section 6323, a \"judgment creditor\" was entitled to notice of an existing federal tax lien. In its 1966 revisions to the Internal Revenue Code, however, Congress changed \"judgment creditor\" to \"judgment lien creditor.” The Senate Report discussing this change made it plain that the addition of the word \"lien\" did not alter the definition courts had traditionally given to \"judgment creditor.\" S.Rep. No. 1708, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Admin. News 3722, 3724 [hereinafter cited as 1966" } ]

[ { "docid": "12869650", "title": "", "text": "findings of fact of the bankruptcy court only for clear error. Id. (citing In re Morrissey, 717 F.2d 100, 104 (3d Cir.1983)). Findings of fact by a trial court are clearly erroneous when, after reviewing the evidence, the appellate court is “left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (citation omitted). We have plenary review over questions of law. Epstein Family Partnership v. Kmart Corp., 13 F.3d 762, 765-66 (3d Cir.1994). It is error for a district court, when acting in the capacity of a court of appeals, to make its own factual findings. Universal Minerals, 669 F.2d at 104. III. The overriding purpose of the Bankruptcy Code is to relieve debtors from the weight of oppressive indebtedness and provide them with a fresh start. Exceptions to discharge are strictly construed against creditors and liberally construed in favor of debtors. See, e.g., United States v. Stelweck, 108 B.R. 488, 495 (Bankr.E.D.Pa.1989). Title 11, section 523(a)(2) of the United States Code provides for exceptions to discharge as follows: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual 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; (B) use of a statement in writing— (i) that is materially false; (ii) respecting the debtor’s or an insider’s financial condition; (iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive.... 11 U.S.C. § 523(a)(2) (1988). The burden of proving that a debt is nondischargeable under § 523(a) is upon the creditor, who must establish entitlement to an exception by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 287-88, 111" } ]

[ { "docid": "13030548", "title": "", "text": "Property Exceptions to Discharge under § 523(a)(6). Section 523(a)(6) excepts from discharge “an individual debtor from any debt for willful and malicious injury by the debtor to another entity or to the property of another entity.” Under subsection (a)(6), the injury to property must have been both willful and malicious, or “wrongful and without just cause or excuse.” See Branch Banking and Trust Co. v. Powers (In re Powers), 227 B.R. 73, 77 (Bankr.E.D.Va.1998); see also Hope v. Walker (In re Walker), 48 F.3d 1161, 1164-65 (11th Cir.1995); DeBellis v. Maula (In re Maula), 166 B.R. 49, 52 (Bankr.M.D.Pa.1994). The burden of proof rests with plaintiff to establish by a preponderance of the evidence that the debt owed to him by debtor is excepted from discharge under § 523(a). See Grogan v. Garner, 498 U.S. 279, 286-91, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). 1. Willfulness. An injury is willful when the court can determine that a debtor intended the act and by his or her conduct intended to cause injury. See Kawaauhau v. Geiger, 523 U.S. 57, 62, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). The Fourth Circuit’s definition of willful for the purposes of determinations of nondischargeability under § 523(a)(6) is “deliberate” or “intentional.” First Nat’l Bank v. Stanley (In re Stanley), 66 F.3d 664, 667 (4th Cir.1995) (citation omitted); Kaufman v. Vamvakaris (In re Vamvakaris), 197 B.R. 228, 231 (Bankr.E.D.Va.1996) (citations omitted). In Kawaauhau v. Geiger, the Supreme Court held that a “willful” injury under § 523(a)(6) required the debtor to have committed an intentional tort. The Court effectively overruled previous decisions of some courts that had recognized reckless or negligent injury as willful and malicious. See Kawaauhau, 523 U.S. at 61-63, 118 S.Ct. 974; see also 4 Collier on Bankrupt cy ¶ 523.12[1] (Lawrence P. King ed., 15th ed. rev.2000). An issue not clearly answered by Geiger is whether a debtor must have specifically intended to cause injury or whether the debtor’s intentional commission of a wrongful act which necessarily leads to injury is sufficient to except the debt from discharge. See id. Collier suggests that" }, { "docid": "1092859", "title": "", "text": "So.2d 366 (Fla.1953). The state court judgment in this case was in favor of the plaintiff Fairway and against the defendant Debtor. Thus, the identity of parties element is satisfied. The two remaining issues require further analysis. First, in entering the judgment, did the state court necessarily resolve is sues identical to the issues which must be decided to sustain a § 523(a)(6) claim? Second, were the issues “actually litigated” since the judgment was entered after a hearing the Debtor did not attend? As discussed below, both of these questions are answered affirmatively. Thus, the doctrine of collateral estoppel must be applied and summary judgment is appropriate. THE JUDGMENT ARISING FROM THE FRAUDULENT LIEN ESTABLISHED WILLFUL AND MALICIOUS INJURY AS REQUIRED BY § 523(a)(6) The issue of nondischargeability of a debt is exclusively a matter of federal law governed by the terms of the Bankruptcy Code. Grogan v. Garner, — U.S. -,-, 111 S.Ct. 654, 658, 112 L.Ed.2d 755, 763 (1991), citing Brown v. Felsen, 442 U.S. 127, 129-130, 136, 99 S.Ct. 2205, 2208, 2211, 60 L.Ed.2d 767 (1979). Therefore, the dischargeability of a debt can never be precisely at issue in a non-bankruptcy lawsuit. Nevertheless, a bankruptcy court can and must give collateral estop-pel effect to those elements of the non-bankruptcy claim that are identical to the elements required for discharge and which were actually litigated and determined in the prior action. Grogan, — U.S. at-, 111 S.Ct. at 658, 112 L.Ed.2d at 763. Under § 523(a)(6) a debt is excepted from discharge if it is based on a “willful and malicious injury by the debtor to another entity or to the property of another entity”. “The word ‘willful’ means ‘deliberate and intentional’ ”. In re Scotella, 18 B.R. 975, 977 (Bankr.N.D.Ill.1982). “ ‘Malicious,’ as used in § 523(a)(6), means ‘wrongful and without just cause or excessive even in the absence of personal hatred, spite or ill will.’ ” Scotella, 18 B.R. at 977; See also, 3 LAWRENCE P. KING et al., COLLIER ON BANKRUPTCY, Paragraph 523.16[1], at 523-129 to 523-134 (15th ed. 1991). Fairway sought and obtained compensatory" }, { "docid": "17577649", "title": "", "text": "9:40:10). 37. The Debtor exhausted the funds a few months after the § 341 Meeting of Creditors was held in her chapter 7 bankruptcy case. (N.T. 10:04:55). 38. The Debtor was aware of the confessed judgment against her and Circles when she withdrew the money from the segregated account. (N.T. 9:24:25). 39. The Debtor also was aware that her conduct would cause injury to the Plaintiffs property rights when she withdrew the money from the segregated account to use for her own benefit. IV. DISCHARGEABILITY UNDER 11 U.S.C. § 523 Generally speaking, the Bankruptcy Code seeks to promote two important policy interests: “to give the debtor a new financial start and to keep creditors on an equal playing field.” In re Calabrese, 689 F.3d 312, 320 (3d Cir.2012). To achieve the objective of a fresh start, the Bankruptcy Code provides debtors a discharge of their prepetition debts. Congress recognized, however, that the policy had to yield in some respects, to balance between the competing interests of debtors and creditors. The discharge is therefore, not absolute. The statutory exceptions to discharge are found in § 523(a). These exceptions are construed strictly against creditors and liberally in favor of debtors. E.g., In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995); In re Vidal, 2012 WL 3907847, *15 (Bankr.E.D.Pa. Sept. 7, 2012). A creditor objecting to the dischargeability of a debt bears the burden of proof. Cohn, 54 F.3d at 1113; In re Bittar, 2012 WL 1605160, *2 (Bankr.D.N.J. May 8, 2012). The creditor must establish the nondischargeability of the debt by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re August, 448 B.R. 331, 357 (Bankr.E.D.Pa.2011) (citations omitted). Section 523(a)(6) specifically excepts from discharge any debt for \"willful and malicious injury by the debtor to another entity or to the property of another entity.\" 11 U.S.C. § 523(a)(6). To invoke the 523(a)(6) exception, the creditor must prove not only that injury has resulted, but also that the debtor's conduct was both \"willful\" and \"malicious.\" E.g., In re Vepun, 2009 WL" }, { "docid": "1563118", "title": "", "text": "is, the plaintiff claims that Reath’s conduct constituted “false pretenses, a false representation, or actual fraud,” and that Reath inflicted injuries upon her with the required “willful and malicious” intent. DISCUSSION The Bankruptcy Code (“Code”) is designed to relieve debtors from the weight of oppressive indebtedness and to provide them with a “fresh start.” In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995). This “fresh start” is available only to the “honest but unfortunate debtor.” Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991); In re Fegeley, 118 F.3d 979, 983 (3d Cir.1997); In re DeBaggis, 247 B.R. 383, 388 (Bankr.D.N.J.1999). Not all debts owed by an individual debtor are discharged in bankruptcy. Certain debts, listed in section 523, are excepted from discharge. The plaintiff has the burden of establishing all elements of a section 523 exception to discharge by a preponderance of the evidence. Grogan, 498 U.S. at 287-88, 111 S.Ct. at 659-60. Exceptions to discharge are to be construed strictly against creditors and liberally in favor of debtors. Cohn, 54 F.3d at 1113. To assert that her claim is non-dis-chargeable, the plaintiff relies on sections 523(a)(2)(A) and 523(a)(6) of the Bankruptcy Code. 1. Section 528(a)(2)(A) Debts based upon fraud are nondis-chargeable pursuant to 11 U.S.C. § 523(a)(2)(A), which provides: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (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)(2)(A) does not define the terms false pretenses, false representation, or actual fraud. Nor does the section expressly refer to elements such as reliance, materiality or intent. Nonetheless, courts have routinely inferred requirements establishing intent, reliance and materiality in applying section 523(a)(2)(A). See, e.g., In re Menna, 16 F.3d 7 (1st Cir.1994); In re Martin, 963 F.2d 809 (5th Cir.1992); In re Phillips, 804 F.2d 930 (6th Cir.1986). The frauds covered" }, { "docid": "12349496", "title": "", "text": "p. 69-83). “[T]he issue of nondischargeability [is] a matter of federal law governed by the terms of the Bankruptcy Code.” Grogan v. Garner, 498 U.S. 279, 284, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). The plaintiffs must “establish by a preponderance of the evidence that [their] claim is not dischargeable.” Id. at 287, 111 S.Ct. 654. “Intertwined with this burden is the basic principle of bankruptcy that exceptions to discharge must be strictly construed against a creditor and liberally construed in favor of a debtor so that the debtor may be afforded a fresh start.” In re Hudson, 107 F.3d 355, 356 (5th Cir.1997). At the same time, the Bankruptcy Code “limits the opportunity for a completely unencumbered new beginning to the honest but unfortunate debt- or.” Grogan, 498 U.S. at 287, 111 S.Ct. 654 (quotation marks omitted). Debts “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny” are excepted from discharge. See 11 U.S.C. § 523(a)(4). Debts are excepted from discharge under § 523(a)(6) when they are “for willful and malicious injury by the debtor to another entity or to the property of another entity.” A “debt” includes “liability on a claim.” 11 U.S.C. § 101(12). A “claim” is “a right to payment,” id. § 101(5)(A), which “is nothing more nor less than an enforceable obligation,” Cohen v. de la Cruz, 523 U.S. 213, 218, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998) (quotation marks omitted). The bankruptcy court concluded that the debts fell within the larceny exception and the willful-and-malicious-injury exception, but not the embezzlement exception. (Docket Entry No. 3, Ex. 20 at p. 70-84). Cowin argues that the bankruptcy court erred in imputing “intent from a coconspir-ator” to him. Cowin asserts that he lacked “the necessary intent ... to commit larceny” or to commit a willful and malicious injury. (Docket Entry No. 5 at p. 20-24). Cowin’s broader point is that the court must find individual intent on the debtors' part before applying the exception-to-discharge statute. Contrary to Cowin’s argument, § 523(a)(4) and (a)(6) do not “focus on the specific intent and actions of" }, { "docid": "12987936", "title": "", "text": "Contella neglected to remit the entire proceeds of sale to Deere & Company. Then, on March 31, 1993, he filed a petition for relief under Chapter 7 of the Bankruptcy Code. This Court issued its order of discharge on July 8, 1993. Deere & Company commenced the present adversary proceeding under section 523 of the Bankruptcy Code to obtain a determination, that its claim is nondischargeable. Specifically, it alleged under subdivision (a)(6) of this section that the debtor inflicted a willful and malicious injury to the property interests of Deere & Company. Alternatively, it asserted that the liability arises out of an embezzlement, as described in subdivision (a)(4) of section 523. In addition, Deere & Company sought a writ of replevin to permit its recovery of the collateral. Upon the statement of facts as set forth above, Deere & Company now moves for summary judgment. WiUful and Malicious Injury Section 523(a)(6) of the Bankruptcy Code provides that an order of discharge does not discharge an individual debtor from any debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.” Key to this exception are the concepts of willfulness and malice. Plaintiff is entitled to summary judgment only if there is no issue of material fact as to both of these requirements. Fed.R.Bankr.P. 7056(c), In re Kaufmann, 57 B.R. 644, 647 (Bkrtey.E.D.Wis.1986). The very nature of willfulness and malice indicates that this exception to discharge applies only to exceptional situations and not to ordinary ones. The concept of willfulness requires not merely an intent to commit the wrongful act but an actual intent to inflict the resulting injury upon the affected creditor. 3 Collier on Bankruptcy ¶523.16[1] 523-129 (15th ed.1979). Malice requires conduct that is not merely tortious, but which is also wrongful and without just cause or excuse. Id. The debtor appears not to dispute that Deere & Company possesses a valid unsecured claim. When viewed most favorably to the debtor, however, the present facts do not establish willful and malicious conduct. At most, they may indicate that the debtor intentionally" }, { "docid": "16759384", "title": "", "text": "the property of another entity; 11 U.S.C. § 523(a)(6). “Willful and malicious” refers to “a wrongful act done intentionally, which necessarily produces harm and is without just cause or excuse.” In re Cecchini, 780 F.2d 1440, 1443 (9th Cir.1986) (quoting 3 L. King, Collier on Bankruptcy § 523.16 at 523-118 (15th ed. 1983)). Our court has adopted the concept that “the conversion of another’s property without his knowledge or consent, done intentionally and without justification and excuse, to the other’s injury,” constitutes a willful and malicious injury within the meaning of the § 523(a)(6). Cecchini, 780 F.2d at 1443 (citing 3 Collier on Bankruptcy, P523.15[1] at 523-120 (15th ed. 1983) (citations omitted)). Transamerica contends that the debtors’ failure to pay Transamerica, as the security agreement provided, constitutes conversion by the officers. The BAP held that: [T]he disposition of Transamerica’s cash proceeds collateral was not malicious under § 523(a)(6), and that even if the conduct were malicious the alleged conversion was excused by Transamerica’s waiver of its contracted for protection in the form of a segregated account. In re Littleton, 106 B.R. 632, 636 (9th Cir.BAP 1989). Without deciding whether the alleged conversion was excused by Transamerica’s waiver of its cash segregation account, we resolve the issue of dis-chargeability on the basis of the individual debtors’ conduct. For a debt to be nondischargeable under § 523(a)(6) the debtors’ injury to Transamerica’s property must have been both willful and malicious. Transamerica can prevail only by showing by a preponderance of the evidence, see Grogan v. Garner, — U.S. -, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991); that the debtors acted both willfully and maliciously when they did not segregate the funds and did not pay Transamerica. The word willful means deliberate or intentional. Cecchini, 780 F.2d at 1443 (quoting 3 L. King, Collier on Bankruptcy § 523.16 at 523-118 (15th ed. 1983)). In the instant case, the debtors paid Transamerica as required under the security agreement up to and including June 5, 1986. The debtors understood that by using the proceeds from the sale of collateral to pay other business debts" }, { "docid": "4558122", "title": "", "text": "found that “lights” and ceiling fans were removed from the home. Trial Tr. 20-22. Many wires were exposed after the lights were taken. Id. As a result of these events, the Plaintiff was compelled to purchase replacement items and make numerous repairs in order to make the home livable. Trial Tr. 22-23. At no time were any of the taken items listed on the Debtor’s bankruptcy schedules. III.DISCUSSION A. Count One, Dischargeability Under § 523(a)(6) In examining a discharge-exception claim under § 523, it is important to note that all § 523 exceptions are construed strictly against creditors and liberally in favor of debtors. In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995); In re Gotwald, 488 B.R. 854, 865 (Bankr.E.D.Pa.2013); Jou v. Adalian (In re Adalian), 481 B.R. 290, 297 (Bankr.M.D.Pa.2012) [hereinafter Adalian II ]. For that reason, the burden of proof lies squarely on the creditor. Cohn, 54 F.3d at 1113; Gotwald, 488 B.R. at 865. The creditor must prove the elements under § 523 by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); Adalian II, 481 B.R. at 297. Count One seeks to deny dis-chargeability of the Plaintiffs debt “for willful and malicious injury by the debtor ... to the property of another entity.” 11 U.S.C. § 523(a)(6). “Willful” and “malicious” have their own special meanings in the bankruptcy context. “Willful” refers to a deliberate or intentional injury, not just a deliberate or intentional act that may lead to injury. Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998); In re Kates, 485 B.R. 86, 100 (Bankr.E.D.Pa.2012); Adalian II, 481 B.R. at 297. Thus, actions taken either for the purpose of causing injury or that have a substantial certainty of producing injury are deemed “willful” under § 523(a)(6). In re Conte, 33 F.3d 303, 307-09 (3d Cir.1994). Similarly, “malice” has a unique meaning in the § 523(a)(6) context: “wrongful and without just cause or excuse, even in the absence of personal hatred, spite, or ill-will.” Jou v. Adalian (In re Adalian)," }, { "docid": "18516557", "title": "", "text": "e.g., Bogstad, 779 F.2d at 372-373 n.4. The only action taken by the Bank prior to the filing of the bankruptcy petition was having Ia-quinta sign the loan documents. If reasonableness requires verification, then a creditor cannot be said to have acted reasonably if no verification took place. In re Smigel, 90 B.R. 935, 937-940 (Bankr.N.D.Ill.1988). The exception potentially excusing some investigation of credit worthiness due to a longstanding favorable credit relationship between the parties appears inapplicable. See Garman, 643 F.2d at 1257-1259; Kreps, 700 F.2d at 376. Accordingly, the Court must deny the relief sought under section 523(a)(2)(A). C. 11 U.S.C. § 523(a)(6) Section 523(a)(6) provides: (a) A discharge under Section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. 11 U.S.C. § 523(a)(6). In order for a debt to be held nondischargeable under section 523(a)(6), the creditor has the burden of proving that the injury resulted from an act that was both willful and malicious; Kimzey, 761 F.2d at 425; United Bank of Southgate v. Nelson, 35 B.R. 766, 768 (N.D.Ill.1983); In re Hopkins, 82 B.R. 952, 953 (Bankr.N.D.Ill.1988). The term “willful” means “deliberate or intentional,” and “malicious” means “wrongful and without just cause or excuse, even in the absence of personal hatred, spite or ill will.” In re Condict, 71 B.R. 485, 487 (N.D.Ill.1987). The debtor need not act with ill will or malevolent purpose toward the injured party. In re Hallaban, 78 B.R. 547, 550 (Bankr.C.D.Ill.1987). Thus, “a wrongful act done intentionally, which necessarily produces harm and is without just cause or excuse, may constitute a willful and malicious injury.” 3 Collier on Bankruptcy ¶ 523.16 at 523-117 (15th ed. 1988). The phrase “willful and malicious injury” encompasses “willful and malicious conversion.” In re Meyer, 7 B.R. 932, 933 (Bankr.N.D.Ill.1981). The Court has carefully considered all of the admissible documentary evidence and the testimony of the witnesses. The 1983 Oldsmobile Toronado was conveyed to Arrowhead Auto Mart; the 1979 Mercedes" }, { "docid": "831648", "title": "", "text": "11 U.S.C. § 523(a)(6) were determined in his favor by the Trial Court and are binding on the Debtor in this proceeding under the doctrine of collateral estop-pel. My analysis of the merits of the Motion requires four (4) steps. First, I will set out the legal standard that must be satisfied for a dischargeability determination under 11 U.S.C. § 523(a)(6). Second, I will summarize the Trial Court’s findings that are pertinent to the § 523(a)(6) claim in this court. Third, I will describe the legal standard for the application of collateral estoppel and determine whether the doctrine applies in this proceeding. Finally, if collateral estoppel applies, I will decide whether the applicable facts support the entry of judgment in Viener’s favor as a matter of law under § 523(a)(6). A. The Requirements Under 11 U.S.C. § 523(a)(6) for Determining A Debt Nondischargeable Section 523(a)(6) of the Bankruptcy Code provides that a chapter 7 discharge does not discharge an individual debtor from any debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.” Based upon the overriding purpose of the Bankruptcy Code of providing relief to debtors from the weight of oppressive indebtedness and provide them with a fresh start, exceptions to discharge are strictly construed against creditors and liberally construed in favor of debtors. E.g., In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995) As with other § 523(a) exceptions to discharge, the creditor bears the burden of demonstrating nondischargeability by a preponderance of the evidence. See, e.g., Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re Graham, 973 F.2d 1089, 1101 (3d Cir.1992). The key phrase in § 523(a)(6) is “willful and malicious injury.” Generally speaking, the willfulness requirement refers to conduct that is “deliberate” or “intentional.” 4 Collier on Bankruptcy ¶ 523.12[2], at 523-92.4 (15th rev. ed.2007) (“Collier”). The “malice” requirement refers to injuries that are “wrongful and without just cause or excuse, even in the absence of personal hatred, spite or ill-will.” Id. (footnote omitted). The two concepts are said" }, { "docid": "16955881", "title": "", "text": "particular type of debt is nondischargeable as a willful and malicious injury under § 523(a)(0). See Petralia v. Jercich (In re Jercich), 243 B.R. 747, 751 (9th Cir. BAP 2000), rev’d on other grounds, 238 F.3d 1202 (9th Cir.2001). After the bankruptcy court determines that the debt stems from an intentional tort, its determination of the malicious nature of the tort is reviewed for clear error. See Gee v. Hammond (In re Gee), 173 B.R. 189, 192 (9th Cir. BAP 1994). Additionally, we review de novo the bankruptcy court’s interpretation of the Code. See United States Trustee v. Celebrity Home Entm’t Inc. (In re Celebrity Home Entm’t Inc.), 210 F.3d 995, 997 (9th Cir.2000). IV.DISCUSSION It is well-settled that the Code’s central purpose of providing a fresh start is limited to the honest but unfortunate debtor. See Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Under certain circumstances, a creditor may seek to except from a debt- or’s discharge certain debts. See 11 U.S.C. § 523(a). Nevertheless, consistent with effectuating the underlying purposes of the Code, exceptions to discharge under § 523 are narrowly construed. See Snoke v. Riso (In re Riso), 978 F.2d 1151, 1154 (9th Cir.1992). Additionally, the standard of proof for a discharge exception is a preponderance of the evidence. See Grogan, 498 U.S. at 287-88, 111 S.Ct. 654. 1. The Bankruptcy Court Erred by Applying an Incorrect Legal Standard in Determining the ‘Willful” Requirement Under § 523(a)(6). The bankruptcy court held the Judgment nondischargeable because there was an objective substantial certainty that Louis’ conduct would result in injury. On appeal, Louis contends that the’bankruptcy court erred in adopting the objective substantial certainty standard, holding the debt nondischargeable under § 523(a)(6). Instead, Louis contends that the correct standard the bankruptcy court should have used was whether Louis believed (subjectively) that his conduct was substantially certain to result in injury. We agree. Section 523(a)(6) excepts from discharge a debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. § 523(a)(6). The" }, { "docid": "5882327", "title": "", "text": "for trial. — II — Plaintiffs seek a determination that the debt for counsel fees and expenses owed to them by debtors is excepted from dis charge by § 523(a)(6) of the Bankruptcy Code, which provides in part as follows: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt — .... (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. 11 U.S.C. § 523(a)(6). A creditor objecting to the discharge of a debt owed to it by a debtor has the burden of proving, by a preponderance of the evidence, that the debt falls within the scope of one of the numerous exceptions to discharge found at § 523(a) of the Bankruptcy Code. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991). It is not sufficient for purposes of § 523(a)(6) that the debtor acted intentionally and that a resulting injury was negligently or recklessly inflicted upon another entity or its property. Kawaauhau v. Geiger, 523 U.S. 57, 64, 118 S.Ct. 974, 978, 140 L.Ed.2d 90 (1998). The phrase “willful and malicious” modifies the word “injury”. This implies that § 523(a)(6) requires a deliberate or intentional injury, not a deliberate or intentional act that merely happens to result in injury. Id., 523 U.S. at 61, 118 S.Ct. at 977. Aside from concluding that a debtor must intend to injure another entity or its property, the Supreme Court did not specify in Kawaauhau the precise state of mind necessary for purposes of the willful- and-malieious-injury requirement of § 523(a)(6). Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1207 (9th Cir.), cert. denied, 533 U.S. 930, 121 S.Ct. 2552, 150 L.Ed.2d 718 (2001). Post -Kawaauhau appellate court decisions appear to take either of two approaches to this issue, one “subjective” and the other “objective”. Under the subjective approach, an injury is willful and malicious for purposes of § 523(a)(6) only if the debtor subjectively intended to cause injury or subjectively believed that injury was a" }, { "docid": "11595024", "title": "", "text": "Cir. 2012) (citing United States v. Martinez (In re Martinez), 564 F.3d 719, 725-26 (5th Cir. 2009)). Thus, we review questions of fact for clear error and conclusions of law de novo. Id. Mixed questions of law and fact are also reviewed de novo. Id. We review a bankruptcy court’s decision on direct appeal under the same standards. Id. IV “[T]he issue of nondischargeability [is] a matter of federal law governed by the terms of the Bankruptcy Code.” Grogan v. Garner, 498 U.S. 279, 284, 111 S.Ct. 664, 112 L.Ed.2d 755 (1991). Nondis-chargeability must be established by a preponderance of the evidence. Id. at 287, 111 S.Ct. 654. “Intertwined with this burden is the basic principle of bankruptcy that exceptions to discharge must be strictly construed against a creditor and liberally construed in favor of a debtor so that the debtor may be afforded a fresh start.” Hudson v. Raggio & Raggio, Inc. (In re Hudson), 107 F.3d 355, 356 (5th Cir. 1997). However, the Bankruptcy Code limits the opportunity for a new beginning to “the honest but .unfortunate debtor.” Grogan, 498 U.S. at 287, 111 S.Ct. 654 (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934)). Section 523(a) of the Bankruptcy Code sets forth the categories of nondischargeable debt. Relevant here, section 523(a)(4) excepts from discharge debts “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” 11 U.S.C. § 523(a)(4). Section 523(a)(6) excepts from discharge debts “for willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. § 523(a)(6). Cowin’s debts are nondischargeable if they fall within either the § 523(a)(4) or the § 523(a)(6) exception. Cowin does not challenge on appeal the bankruptcy court’s conclusions that he participated in a conspiracy to divert proceeds from the Countrywide Plaintiffs, is liable for state-law violations due to his participation in the conspiracy, and that the conduct and intent of the conspiracy meet the federal common law standard for either the “larceny” or “willful or malicious injury” exception. Rather, Cowin" }, { "docid": "94543", "title": "", "text": "any debt ... for willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. § 523(a), (a)(6). In order for issue preclusion to apply, the issues of willfulness and maliciousness must have been determined by the Wisconsin judgment. Hence, Bukow-ski cannot discharge the Wisconsin judgment if his conduct giving rise to that judgment was determined to be “willful and malicious.” Although issue preclusion may preclude a bankruptcy court from relitigating previously-decided issues, the ultimate issue of dischargeability is a legal issue. In re McNallen, 62 F.3d 619, 625 (4th Cir.1995). To further the policy of providing a debtor a fresh start in bankruptcy, debts are presumed to be dischargeable in bankruptcy. See Meyer v. Rigdon, 36 F.3d 1375, 1385 (7th Cir.1994). Although creditors may bring adversary proceedings to hold a debt nondischargeable, exceptions to discharge are construed strictly against the creditor and liberally in favor of the debtor. Id. In the present case the only disputed questions are whether issue of willful and malicious injury was determined in state court and, if so, whether determination of the issue was necessary to the judgment. A. Meaning of “Willful and Malicious Injury” “Willful” means deliberate or intentional. Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (hereafter “Geiger”). Prior to Geiger most courts held that an injury inflicted intentionally and deliberately, and either with the intent to cause the harm complained of, or in circumstances in which the harm was certain or almost certain to result from the debtor’s act, was willful under § 523(a)(6). 4 Lawrence P. King, Collier on Bankruptcy § 523.12[1], at 523-92 (15th ed. rev.2001); see, e.g., In re Scarlata, 979 F.2d 521 (7th Cir.1992). In Geiger the Supreme Court held that the § 523(a)(6) exception is limited to conduct associated with “intentional torts” and does not encompass conduct that is merely negligent: The word “willful” in (a)(6) modifies the word “injury,” indicating that nondis-chargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury. Had Congress" }, { "docid": "1095177", "title": "", "text": "section numbers throughout this memorandum are to the Bankruptcy Reform Act of 1987 (“Bankruptcy Code\"), as amended, 11 U.S.C. § 101 et seq. (1992). . The state court expressly found by clear and convincing evidence that the debtor injured Hal-lum’s property interests willfully and maliciously. The matter was fully litigated at trial and in the appellate court. Memorandum of Decision dated August 5, 1992, Court Document No. 21. . Id. See Grogan v. Garner, 498 U.S. 279, -, 111 S.Ct. 654, 658, 112 L.Ed.2d 755 (1991); In re Brawn, 138 B.R. 327, 329-30 (Bankr.D.Me.1992); In re Picard, 133 B.R. 1, 2 (Bankr.D.Me.1991). . Hallum's complaint sought to establish non-dischargeability under §§ 523(a)(2)(A) and 523(a)(4), as well as under § 523(a)(6). . Because summary judgment was entered in Hallum’s favor under § 523(a)(6) and because the punitive damages award is nondischargeable under the same Code provision, it is unnecessary to address the issue whether punitive damages are excepted from discharge under § 523(a)(2) or § 523(a)(4). Section 523(a)(6) provides that a discharge entered under Code §§ 727, 1141, 1228(a), 1228(b) or 1328(b) does not discharge and individual debtor from “any debt ... for willful or malicious injury by the debtor to another entity or to the property of another entity....\" . Grogan v. Garner, 498 U.S. 279, - n. 2, 111 S.Ct. 654, 657 n. 2, 112 L.Ed.2d 755 expresses the Supreme Court's view that dischargeability of punitive damages is properly considered under § 523(a)(6). . Coen discusses § 17(a)(8) of the Bankruptcy Act (11 U.S.C. § 35(a)(3) (1973)) which excepts \"... liabilities ... for willful and malicious injuries to the person or property of another....\" Adams concerns that section's successor, § 523(a)(6) of the Code, which excepts \"... any debt ... for willful and malicious injury_” The difference between a \"liability” and a \"debt” is purely semantic: ‘\"Debt’, which is defined under the Code as 'liability on a claim,’ 11 U.S.C. 101(12) (1991), has a meaning coextensive with 'claim' as defined in § 101(5).” Johnson v. Home State Bank, — U.S. -, - n. 5, 111 S.Ct. 2150, 2154 n." }, { "docid": "2082224", "title": "", "text": "under § 727(a)(2)(A) or (B). Accordingly, the Court will issue an order of discharge for the Debtor. Nondischargeability of Debt Under Section 523(a). Notwithstanding the Debtor’s right to a discharge, the Plaintiffs alternatively seek a determination that the debts owed to them by the Debtor are nondis-chargeable under various subsections of § 523(a). Similar to the consideration of the objection to discharge, the Plaintiffs assume the burden of proof under a preponderance of the evidence standard. Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) and all exceptions to discharge under § 523 “must be strictly construed against a creditor and liberally construed in favor of a debtor so that the debtor may be afforded a fresh start.” In re Hudson, 107 F.3d 355, 356 (5th Cir.1997). Nondischargeability Under § 523(a)(6): Debt Arising from Willful and Malicious Injury Section 523(a)(6) provides that: A discharge under Section 727 ... of this title does not discharge an individual debtor from any debt&emdash; for willful and malicious injury by the debtor to another entity or to the property of another entity. The United States Supreme Court has re-examined in recent years whether the scope of § 523(a)(6) encompasses all intentional acts that cause injury, or only acts done with an actual intent to cause injury. Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). In Geiger, the Court stated: The word “willful” in (a)(6) modifies the word “injury”, indicating that nondis-chargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury. Had Congress meant to exempt debts resulting from unintentionally inflicted injuries, it might have described instead “willful acts that cause injury.” Or, Congress might have selected an additional word or words, i.e., “reckless” or “negligent,” to modify “injury.” Moreover ..., the (a)(6) formulation triggers in the lawyer’s mind the category “intentional torts,” as distinguished from negligent or reckless torts. Intentional torts generally require that the actor intend “the consequences of an act,” not simply “the act itself.” Restatement (Seoond) of Torts § 8A, comment a, p." }, { "docid": "6885674", "title": "", "text": "do not mean, however, that what was plead in the original complaint would not have supported a conversion claim. To the contrary, upon review of the earlier pleading, the Court concludes that had conversion been plead on those facts, it would likewise have been found to state a claim. Based on that finding, the Court finds that the claim in Count II of the amended complaint relates back in time to the filing of the original pleading. Count II — Legal Sufficiency The Debtor also maintains that Count II fails to state a claim for a debt arising out willful and malicious injury by the Debtor. Subsection (a)(6) of § 523 provides that “[a] discharge under section 727 ... of this title does not discharge an individual debtor from any debt — ... for willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. § 523(a)(6). This type of claim generally relates to torts and not to contracts. 4 Collier on Bankruptcy ¶ 523.12[1] (16th ed.). By its terms, it may apply to a broad range of harmful conduct. Id. To fall within this exception, the injury must have been both willful and malicious. Id., ¶ 523.12[2], The term “willful” refers to a deliberate or intentional injury, not just a deliberate or intentional act that leads to injury. In re Coley, 433 B.R. 476, 497 (Bkrtcy.E.D.Pa.2010) (citing Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998)). The plaintiff must establish that the debtor “purposefully inflict[ed] the injury or act[ed] in such a manner that he is substantially certain that injury will result.” In re Conte, 33 F.3d 303, 305 (3d Cir.1994). “Malice” refers to actions that are wrongful and without just cause or excuse, even in the absence of personal hatred, spite or ill-will. 4 Collier, supra, at ¶ 523.12[2]; see also In re Wooten, 423 B.R. 108, 130 (Bankr.E.D.Va.2010) (explaining that malice does not mean the same thing for nondischargeability purposes under § 523(a)(6) as it does in con texts outside of bankruptcy: “In bankruptcy, debtor" }, { "docid": "831649", "title": "", "text": "or to the property of another entity.” Based upon the overriding purpose of the Bankruptcy Code of providing relief to debtors from the weight of oppressive indebtedness and provide them with a fresh start, exceptions to discharge are strictly construed against creditors and liberally construed in favor of debtors. E.g., In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995) As with other § 523(a) exceptions to discharge, the creditor bears the burden of demonstrating nondischargeability by a preponderance of the evidence. See, e.g., Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re Graham, 973 F.2d 1089, 1101 (3d Cir.1992). The key phrase in § 523(a)(6) is “willful and malicious injury.” Generally speaking, the willfulness requirement refers to conduct that is “deliberate” or “intentional.” 4 Collier on Bankruptcy ¶ 523.12[2], at 523-92.4 (15th rev. ed.2007) (“Collier”). The “malice” requirement refers to injuries that are “wrongful and without just cause or excuse, even in the absence of personal hatred, spite or ill-will.” Id. (footnote omitted). The two concepts are said to be “distinct requirements.” Id. ¶ 523.12[2], at 92.3. Case law analyzing the “willful and malicious” requirement under § 523(a)(6) is divided into two initial lines, differentiated by the nature of the debtor’s state of mind in taking the action that caused injury to the creditor. In a minority of cases, courts have required that the debtor act with the specific intent or purpose of causing injury to the creditor before finding the debt arising from the conduct to be nondischargeable under § 523(a)(6). See, e.g., Matter of Hartley, 869 F.2d 394 (8th Cir.1989); In re Akridge, 89 B.R. 66 (9th Cir. BAP 1988). In the overwhelming majority of cases, courts have taken a broader view, holding that the “willful and malicious” nature of the injury caused by a debtor’s conduct may be inferred from the nature of the act itself. See Shawn M. Blatt, Willful and Malicious Exception From Discharge: the “Implied Malice” Standard, 16 U. Dayton L.Rev. 155, 163-164 & n. 85 (1990) (collecting cases). In the majority view, malice can be inferred" }, { "docid": "5168533", "title": "", "text": "section 523(a)(6) was one of “clear and convincing evidence.” In re Bogstad, 779 F.2d 370, 373 (7th Cir.1985). Recently, however, the United States Supreme Court has indicated that a lower standard of proof applies to all exceptions to discharge under section 523, that being a mere “preponderance of the evidence.” Grogan v. Garner, - U.S. -, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). The discharge provisions of section 523 are construed strictly against the creditor and liberally in favor of the debtor. In re Pochel, 64 B.R. 82, 84 (Bankr.C.D.Ill.1986). B. 11 U.S.C. § 523(a)(6) Section 523(a)(6) provides: (а) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (б) for willful and malicious injury by the debtor to another entity or to the property of another entity. 11 U.S.C. § 523(a)(6). In order for a debt to be held nondischargeable under section 523(a)(6), the creditor has the burden of proving that the injury resulted from an act that was both willful and malicious. In re Kimzey, 761 F.2d 421, 424 (7th Cir.1985); United States Bank of Southgate v. Nelson, 35 B.R. 766, 768 (N.D.Ill.1983); In re Hopkins, 82 B.R. 952, 953 (Bankr.N.D.Ill.1988). The term “willful” means “deliberate or intentional,” and “malicious” means “wrongful and without just cause for excuse even in the absence of personal hatred, spite or ill will.” In re Condict, 71 B.R. 485, 487 (N.D.Ill.1987); In re Meyer, 7 B.R. 932, 933 (Bankr.N.D.Ill.1981). The debtor need not act with ill will or malevolent purpose towards the injured party. In re Hallahan, 78 B.R. 547, 550 (Bankr.C.D.Ill.1987), aff'd, 113 B.R. 975 (C.D.Ill.1990), aff'd, 936 F.2d 1496 (7th Cir.1991). Thus, “a wrongful act done intentionally, which necessarily produces harm and is without just cause or excuse, may constitute a willful and malicious injury.” See 3 Collier on Bankruptcy, ¶ 523.16 at 523-129 (15th ed. 1992). The phrase “willful and malicious injury” encompasses “willful and malicious conversion.” In re Meyer, 7 B.R. at 933. Implied or constructive malice will be found if the debtor injures the creditor by an intentional or" }, { "docid": "3940021", "title": "", "text": "Finally, GMAC seeks summary judgment under § 523(a)(6). 1. 11 U.S.C. § 523(a)(6) excepts from a debtor’s chapter 7 discharge any debt a “for willful and malicious injury by the debtor to another entity or to the property of another entity.” The key phrase in § 523(a)(6) is “willful and malicious injury.” The natural reading of this phrase requires that the terms “willful” and “malicious” be treated as distinct elements, with separate meanings in a § 523(a)(6) nondis-chargeability proceeding, and courts have so construed the statute. See In re Barboza, 545 F.3d 702, 711-12 (9th Cir.2008); In re Porter, 539 F.3d 889, 893 (8th Cir.2008); 4 Collier ¶ 523.12[2], at 523-92. As explained below, certain analytic difficulties have arisen when courts have attempted to give meaning to both of the statutory terms. In Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998), the Supreme Court instructed that the “word ‘willful’ in (a)(6) modifies the word ‘injury,’ ” and therefore, nondis-chargeability requires “a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Id. at 61, 118 S.Ct. 974. In the context of § 523(a)(6), actions taken for the specific purpose of causing an injury as well as actions that have a substantial certainty of producing injury are “willful” within the meaning of § 523(a)(6). In re Conte, 33 F.3d 303, 307-09 (3d Cir.1994). Therefore, under § 523(a)(6), for there to be a “willful” injury, “the Bankruptcy Code requires at least a deliberate action that is substantially certain to produce harm.” Id. at 309 (emphasis added). Turning to the terra “malicious,” since 1898, most courts in bankruptcy nondis-chargeability proceedings have construed the term to refer to injuries “that are ‘wrongful and without just cause or excuse, even in the absence of personal hatred, spite or ill-will.’ ” James William Moore (ed.), 1A Collier on Bankruptcy ¶ 17.17, at 1650.4 (14th ed.1978) (referring to § 17a of the former Bankruptcy Act); 4 Collier ¶ 523.12[2], at 523-92 (emphasis added); see also Printy v. Dean Witter Reynolds, Inc., 110 F.3d 853, 859 (1st Cir.1997);" } ]

[ { "docid": "22076164", "title": "", "text": "of representation to a layman. Under certain circumstances, that approach is appropriate in the case of speech that simply “propose [s] a commercial transaction,” Pittsburgh Press Co. v. Human Relations Comm’n, 413 U. S. 376, 385 (1973). See Ohralik, post, at 455-459. In the con text of political expression and association, however, a State must regulate with significantly greater precision. VI The State is free to fashion reasonable restrictions with respect to the time, place, and manner of solicitation by members of its Bar. See Bates v. State Bar of Arizona, 433 U. S., at 384; Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S., at 771, and cases cited therein. The State’s special interest in regulating members of a profession it licenses, and who serve as officers of its courts, amply justifies the application of narrowly drawn rules to proscribe solicitation that in fact is misleading, overbearing, or involves other features of deception or improper influence. As we decide today in Ohralik, a State also may forbid in-person solicitation for pecuniary gain under circumstances likely to result in these evils. And a State may insist that lawyers not solicit on behalf of lay organizations that exert control over the actual conduct of any ensuing litigation. See Button, 371 U. S., at 447 (White, J., concurring in part and dissenting in part). Accordingly, nothing in this opinion should be read to foreclose carefully tailored regulation that does not abridge unnecessarily the associational freedom of nonprofit organizations, or their members, having characteristics like those of the NAACP or the ACLTJ. We conclude that South Carolina’s application of DR 2-103 (D) (5) (a) and (c) and 2-104 (A) (5) to appellant’s solicitation by letter on behalf of the ACLU violates the First and Fourteenth Amendments. The judgment of the Supreme Court of South Carolina is Reversed. Mr. Justice Brennan took no part in the consideration or decision of this case. [For opinion of Mr. Justice Marshall, concurring in part and concurring in the judgment, see post, p. 468.] The court below determined that the Carolina Community Law Firm was “ 'an" } ]

[ { "docid": "7043024", "title": "", "text": "forth in Central Hudson, see id. Bad Frog’s label attempts to function, like a trademark, to identify the source of the product. The picture on a beer bottle of a frog behaving badly is reasonably to be understood as attempting to identify to consumers a product of the Bad Frog Brewery. In addition, the label serves to propose a commercial transaction. Though the label communicates no information beyond the source of the product, we think that minimal information, conveyed in the context of a proposal of a commercial transaction, suffices to invoke the protections for commercial speech, articulated in Central Hudson. Even if its labels convey sufficient information concerning source of the product to warrant at least protection as commercial speech (rather than remain totally unprotected), Bad Frog contends that its labels deserve full First Amendment protection because their proposal of a commercial transaction is combined with what is claimed to be political, or at least societal, commentary. The “core notion” of commercial speech includes “speech which does no more than propose a commercial transaction.” Bolger, 463 U.S. at 66, 103 S.Ct. at 2880 (citations and internal quotation marks omitted). Outside this so-called “core” lie various forms of speech that combine commercial and noncommercial elements. Whether a communication combining those elements is to be treated as commercial speech depends on factors such as whether the communication is an advertisement, whether the communication makes reference to a specific product, and whether the speaker has an economic motivation for the communication. See id. at 66-67, 103 S.Ct. at 2879-81. Bolger explained that while none of these factors alone would render the speech in question commercial, the presence of all three factors provides “strong support” for such a determination. Id.; see also New York State Association of Realtors, Inc. v. Shaffer, 27 F.3d 834, 840 (2d Cir.1994) (considering proper classification of speech combining commercial and noncommercial elements). We are unpersuaded by Bad Frog’s attempt to separate the purported social commentary in the labels from the hawking of beer. Bad Frog’s labels meet the three criteria identified in Bolger: the labels are a form" }, { "docid": "3383606", "title": "", "text": "463 U.S. at 66, 103 S.Ct. 2875. In and of itself, profit motive on the speaker’s part does not transform noncommercial speech into commercial speech. See id. at 67, 103 S.Ct. 2875. Yet, the confluence of these considerations may permit the conclusion that the speech at issue is commercial in nature. See id. Furthermore, when the speech at issue contains both commercial elements and political or social commentary, the line between commercial and noncommercial speech can be difficult to discern. When these elements are intertwined, the commercial or noncommercial character of the speech is determined by “the nature of the speech taken as a whole.” Riley v. National Fed’n of the Blind of North Carolina, Inc., 487 U.S. 781, 796, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). Consideration of the full context of the speech is therefore critical. See Bolger, 463 U.S. at 67-68, 103 S.Ct. 2875. Thus, if a communication, at bottom, proposes a commercial transaction, the fact that it contains some commentary about issues of public interest will not alter its nature. See Fox, 492 U.S. at 475, 109 S.Ct. 3028 (“We have made clear that advertising which links a product to a current public debate is not thereby entitled to the constitutional protection afforded noncommercial speech.” (internal quotation marks omitted)). For purposes of this case, however, we need not ponder the analytical niceties of speech that contains both commercial and noncommercial elements. The general contours of the definition of commercial speech are sufficient for us to discern that the only speech which could possibly be impacted here is not commercial. Rather, we are addressing gubernatorial campaign messages which, generally speaking, fall squarely within the notion of core political speech and are quintessential^ noncommercial. The only consideration that gives us pause is the medium of the speech: paid advertisements. However, the mere fact that political speech is delivered in such a fashion, i.e., that “money is spent to project it, as in a paid advertisement,” Virginia Bd. of Pharmacy, 425 U.S. at 761, 96 S.Ct. 1817, does not taint its otherwise noncommercial nature, see id.; Bolger, 463 U.S." }, { "docid": "18975142", "title": "", "text": "non-commercial aspects of the demonstrations was misplaced. In Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983), the Supreme Court confronted an argument very similar'''to that advanced here by AFS and the students. Youngs was engaged in the sale of contraceptive devices, and part of its advertising involved the mailing of pamphlets explaining the usefulness of condoms in avoiding venereal infection. The Court noted that the pamphlets were not “within the core notion of commercial speech” because they did more than simply propose a commercial transaction. Nonetheless, the Court held that, taken together, three factors provided “strong support” for a conclusion that the speech was commercial: (1) the speech involved was conceded to be an advertisement; (2) the speech referred to a specific product; and (3) the speaker had an economic motive for making the speech. The Court explained that mere discussion of important public issues in advertisements does not render them non-commercial. Id. 103 S.Ct. at 2880-81. We believe that this aspect of the case sub judice is controlled by Bolger. As in Bolger, the speech here is essentially an-advertisement of AFS’s wares, it specifically refers to AFS’s products, and AFS’s motivation for engaging in the speech is purely economic. There may be cases in which the character of the speech is unclear and in which testimony concerning the motivation of the listeners and the educational or social value of the speech might be relevant in determining whether the speech is commercial or pure for first amendment purposes. However, cases of this type will be rare, and this is not one of them. On the record before us, the speech in question is commercial as a matter of law. Moreover, we do not believe, as the district court apparently did, that the speech at issue can be commercial for purposes of determining AFS’s rights but pure for purposes of determining the students’ rights. The Bolger criteria are employed to discern whether speech is, in its essence, part and parcel of a proposed commercial transaction. It is this connection to a commercial transaction" }, { "docid": "11050628", "title": "", "text": "Talk about Venereal Disease.” The pamphlets included references, of varying degrees of prominence, to Youngs and its Trojan-brand condoms. Id. at 62 n. 4, 66 n. 13, 103 S.Ct. at 2878 n. 4, 2880 n. 13. The Court noted that Youngs’ informational pamphlets “cannot be characterized merely as proposals to engage in commercial transactions.” Id. at 66, 103 S.Ct. at 2880. Instead, their identity was a hybrid — part commercial solicitation, part discussion of public issues — and the necessity of classifying them as “commercial” or “noncommercial” speech presented the Court with a problem. In responding to this hybrid speech, the Court rejected several possible bright-line tests: The mere fact that these pamphlets are conceded to be advertisements clearly does not compel the conclusion that they are commercial speech. Similarly, the reference to a specific product does not by itself render the pamphlets commercial speech. Finally, the fact that Youngs has an economic motivation for mailing the pamphlets would clearly be insufficient by itself to turn the materials into commercial speech. Id. at 66-67, 103 S.Ct. at 2880-81 (footnote and citations omitted). While the Court deemed it a “closet ] question,” it concluded that “[t]he combination of all these characteristics ... provides strong support for the ... conclusion that the informational pamphlets are properly characterized as commercial speech.” Id. at 67, 103 S.Ct. at 2880. In reaching this conclusion, the Court rejected an argument on which AIP and APS rely heavily in the case before us — that the informational aspect of the complained-of materials, and in particular their discussion of important public issues, should serve to invest them with the full protection of the First Amendment. The Court reasoned: The mailings constitute commercial speech notwithstanding the fact that they contain discussions of important public issues such as venereal disease and family planning. We have made clear that advertising which “links a product to a current public debate” is not thereby entitled to the constitutional protection afforded noncom mercial speech.... Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to" }, { "docid": "22161361", "title": "", "text": "mail, in-person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term ‘solicit’ includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.’” 726 S. W. 2d, at 301 (quoting ABA, Model Rule of Professional Conduct 7.3 (1984)). The court did not specify either the precise infirmity in Rule 3.135(5)(b)(i) or how Rule 7.3 cured it. Rule 7.3, like its predecessor, prohibits targeted, direct-mail solicitation by lawyers for pecuniary gain, without a particularized finding that the solicitation is false or misleading. We granted cer-tiorari to resolve whether such a blanket prohibition is consistent with the First Amendment, made applicable to the States through the Fourteenth Amendment, 484 U. S. 814 (1987), and now reverse. II Lawyer advertising is in the category of constitutionally protected commercial speech. See Bates v. State Bar of Arizona, 433 U. S. 350 (1977). The First Amendment principles governing state regulation of lawyer solicitations for pecuniary gain are by now familiar: “Commercial speech that is not false or deceptive and does not concern unlawful activities . . . may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.” Zauderer, supra, at 638 (citing Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 566 (1980)). Since state regulation of commercial speech “may extend only as far as the interest it serves,” Central Hudson, supra, at 565, state rules that are designed to prevent the “potential for deception and confusion . . . may be no broader than reasonably necessary to prevent the” perceived evil. In re R. M. J., 455 U. S. 191, 203 (1982). In Zauderer, application of these principles required that we" }, { "docid": "22688651", "title": "", "text": "However, we continued to observe the distinction between commercial and noncommercial speech, indicating that the former could be forbidden and regulated in situations where the latter could not be. Id., at 379-381, 383-384. In Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978), the Court refused to invalidate on First Amendment grounds a lawyer’s suspension from practice for face-to-face solicitation of business for pecuniary gain. In the course of doing so, we again recognized the common-sense and legal distinction between speech proposing a commercial transaction and other varieties of speech: “To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment’s guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.” Id., at 456. In Young v. American Mini Theatres, Inc., 427 U. S. 50, 69, n. 32 (1976), Justice Stevens stated that the difference between commercial price and product advertising and ideological communication permits regulation of the former “that the First Amendment would not tolerate with respect to the latter.” See also Linmark Associates, Inc. v. Willingboro, 431 U. S., at 91-92, and Friedman v. Rogers, 440 U. S. 1, 8-10 (1979). Finally, in Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U. S. 567 (1980), we held: “The Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. The protection available for a particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.” Id., at 562-563 (citation omitted). We then adopted a four-part test for determining the validity of government restrictions on commercial speech as distinguished from more fully protected speech. (1) The First Amendment protects commercial speech only if that speech concerns" }, { "docid": "18975141", "title": "", "text": "forms of expression.” Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 2879, 77 L.Ed.2d 469 (1983); see also Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 562-63, 100 S.Ct. 2343, 2349-50, 65 L.Ed.2d 341 (1980); Ohralik v. Ohio State Bar Association, 436 U.S. 447, 455-56, 98 S.Ct. 1912, 1918-19, 56 L.Ed.2d 444 (1978). AFS and the students argue that, because there are substantial educational, social, and cultural aspects to the AFS demonstrations, these demonstrations are entitled to the first amendment protection afforded “pure” speech, as opposed to the lesser protection applicable to “commercial” speech. In support of this position, two of the students testified about the noncommercial utility of the demonstrations, and two experts testified about their educational value. The district court concluded on the basis of this testimony that “the communicative process at issue here, at least with respect to the students, does not involve solely commercial speech.” AFS, 568 F.Supp. at 669. The district court’s reliance on the testimony concerning the non-commercial aspects of the demonstrations was misplaced. In Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983), the Supreme Court confronted an argument very similar'''to that advanced here by AFS and the students. Youngs was engaged in the sale of contraceptive devices, and part of its advertising involved the mailing of pamphlets explaining the usefulness of condoms in avoiding venereal infection. The Court noted that the pamphlets were not “within the core notion of commercial speech” because they did more than simply propose a commercial transaction. Nonetheless, the Court held that, taken together, three factors provided “strong support” for a conclusion that the speech was commercial: (1) the speech involved was conceded to be an advertisement; (2) the speech referred to a specific product; and (3) the speaker had an economic motive for making the speech. The Court explained that mere discussion of important public issues in advertisements does not render them non-commercial. Id. 103 S.Ct. at 2880-81. We believe that this aspect of the case sub judice" }, { "docid": "11050639", "title": "", "text": "fact that AIP and APS stood to benefit from publishing BarschaU’s results — even that they intended to benefit — is insufficient by itself to turn the articles into commercial speech. Riley, 487 U.S. at 795-96, 108 S.Ct. at 2676-78; Bolger, 463 U.S. at 67, 103 S.Ct. at 2880 (economic motivation by itself does not make speech commercial); Schaumburg, 444 U.S. at 632, 100 S.Ct. at 833; Virginia Pharmacy Bd., 425 U.S. at 761, 96 S.Ct. at 1825. Non-profit organizations must be free to participate fully in the marketplace of ideas without fear of sanctions, even if such participation redounds to their financial benefit. To hold otherwise would be to squelch the expression of facts and opinions which might not otherwise find ready expression through commercial media. See Schaumburg, 444 U.S. at 632, 100 S.Ct. at 833 (protecting charitable solicitation because “without solicitation the flow of ... information and advocacy [on particular causes and views] would likely cease”); Munson, 467 U.S. at 959-60, 104 S.Ct. at 2848-49 (same); New York Times, 376 U.S. at 266, 84 S.Ct. at 718 (extending full First Amendment protection to non-profit group’s “editorial advertisement” as means of securing “the widest possible dissemination of information from diverse and antagonistic sources”). Unless non-profit organizations are free to express such ideas without fear of Lanham Act scrutiny, these ideas might not enter the marketplace at all. This observation is particularly true in the circumstances of this case. For, G & B alleges, the offending “message” of Barsc-hall’s articles is precisely that journals published by non-profit science societies provide a better value than commercially published journals. (Compl. ¶21, 36, 37, 50) This message is clearly one that is likely to be broadcast by non-profit publishers or not at all. G & B’s second allegation, that Barschall’s connections to AIP and APS were inadequately disclosed, is also insufficient to state a Lanham Act claim. This allegation, when combined with the allegation that defendants stood to gain competitively by publishing Barschall’s articles, admittedly raises the inference that defendants may have been lax in failing to alert their reading public to an" }, { "docid": "22161362", "title": "", "text": "and now reverse. II Lawyer advertising is in the category of constitutionally protected commercial speech. See Bates v. State Bar of Arizona, 433 U. S. 350 (1977). The First Amendment principles governing state regulation of lawyer solicitations for pecuniary gain are by now familiar: “Commercial speech that is not false or deceptive and does not concern unlawful activities . . . may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.” Zauderer, supra, at 638 (citing Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 566 (1980)). Since state regulation of commercial speech “may extend only as far as the interest it serves,” Central Hudson, supra, at 565, state rules that are designed to prevent the “potential for deception and confusion . . . may be no broader than reasonably necessary to prevent the” perceived evil. In re R. M. J., 455 U. S. 191, 203 (1982). In Zauderer, application of these principles required that we strike an Ohio rule that categorically prohibited solicitation of legal employment for pecuniary gain through advertisements containing information or advice, even if truthful and nondeceptive, regarding a specific legal problem. We distinguished written advertisements containing such information or advice from in-person solicitation by lawyers for profit, which we held in Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978), a State may categorically ban. The “unique features of in-person solicitation by lawyers [that] justified a prophylactic rule prohibiting lawyers from engaging in such solicitation for pecuniary gain,” we observed, are “not present” in the context of written advertisements. Zauderer, supra, at 641-642. Our lawyer advertising cases have never distinguished among various modes of written advertising to the general public. See, e. g., Bates, supra (newspaper advertising); id., at 372, n. 26 (equating advertising in telephone directory with newspaper advertising); In re R. M. J., supra (mailed announcement cards treated same as newspaper and telephone directory advertisements). Thus, Ohio could no more prevent Zauderer from mass-mailing to a general population his offer to represent" }, { "docid": "12654255", "title": "", "text": "attempts to hire a day laborer has proposed a commercial transaction. By the same token, a day laborer soliciting work from the roadside proposes a commercial transaction. Because the day labor provisions are explicitly limited to attempts to hire, hiring, picking up and transporting workers to work at a different location, all affected speech is either speech soliciting a commercial transaction or speech necessary to the consummation of a commercial transaction. The plaintiffs, however, argue that day labor solicitation speech is “core” First Amendment speech because it is inextricably intertwined with core political and economic messages. See Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (holding that commercial speech does not “retain[ ] its commercial character when it is inextricably intertwined with otherwise fully protected speech”). Plaintiffs may be correct that day laborers convey vital political and economic messages when they solicit work from the side of the road, but those messages are not inextricably intertwined with the speech the day labor provisions regulate. Nothing in those provisions prohibits a worker from expressing his views publicly, nor is there any reason such views cannot be expressed without soliciting work. See Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 474, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) (“No law of man or of nature makes it impossible to sell housewares without teaching home economics, or to teach home economics without selling housewares.”). Immigration policy and economic equality are matters of public importance and the mere presence of day laborers on the street may express something about their own views on these topics. The presence of day laborers soliciting work in the streets may also increase the salience of economic or immigration debates to others who encounter the day laborers. However compelling these arguments, the Supreme Court has made clear that “advertising which ‘links a product to a current public debate’ is not thereby entitled to the constitutional protection afforded noncommercial speech.” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 68, 103 S.Ct." }, { "docid": "23053860", "title": "", "text": "informational pamphlets are properly characterized as commercial speech. Id. at 66-67, 103 S.Ct. 2875 (citations omitted). The Court went on to say that “[a] company has the full panoply of protections available to its direct comments on public issues, so there is no reason for providing similar constitutional protection when such statements are made in the context of commercial transactions.” Id. at 68, 103 S.Ct. 2875. Thus, as one commentator has put it, speech is commercial under Bolger if: “(1) [i]t is an advertisement of some form, (2) it refers to a specific product, and (3) the speaker has an economic motivation for the speech.” Erwin Chemerinsky, Constitutional Law: Principles and Policies § 11.3.7.2. The speech affected by the petition support clause is not commercial speech under Bolger. A statement compelled in response to an ITC questionnaire is not an advertisement, nor does it refer to a specific product. SKF may have had “an economic motivation” for answering the questionnaire, but, as Bolger makes clear, “an economic motivation ... would clearly be insufficient by itself to turn [speech] into commercial speech.” Bolger, 463 U.S. at 67, 103 S.Ct. 2875; see also Bigelow v. Virginia, 421 U.S. 809, 818, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975) (“The State was not free of constitutional restraint merely ... because appellant’s motive or the motive of the advertiser may have involved financial gain. The existence of commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment.” (citations and internal quotation marks omitted)). To the contrary, SKF’s response to the question “Do you support or oppose the petition?” is precisely the kind of “direct comment[ ] on public issues” for which it has “the full panoply of protections available” under the First Amendment. Moreover, even if the majority were correct that the test for commercial speech is whether the regulated “expression re late[s] solely to the economic interests of the speaker and its audience,” Maj. Op. at 1355, I cannot agree that this test is satisfied here. The majority reasons that “[Rewarding parties under the circumstances here" }, { "docid": "11050627", "title": "", "text": "“core” commercial speech. There is no doubt a “common sense” basis for distinguishing between the two, but ... the difference is a matter of degree. Id., — U.S. at —, 113 S.Ct. at 1513. The Court’s fullest examination of such intertwined “commercial” and “noncommercial” materials is provided in Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983), a case on which G & B relies heavily. In Bolger, the Court examined the application of a federal statute which prohibited the mailing of unsolicited advertisements for contraceptives. Youngs, a pharmaceuticals wholesaler, sought to undertake a campaign of unsolicited mass mailings promoting its products, including contraceptives, to the general public. Id. at 62, 103 S.Ct. at 2878. Most of Youngs’ mailings consisted primarily of price and quantity information, and thus “f[e]ll within the core notion of commercial speech.” Id. at 66, 103 S.Ct. at 2880. Some of the mailings, however, presented a more difficult question; these consisted of informational pamphlets with titles such as “Condoms and Human Sexuality” and “Plain Talk about Venereal Disease.” The pamphlets included references, of varying degrees of prominence, to Youngs and its Trojan-brand condoms. Id. at 62 n. 4, 66 n. 13, 103 S.Ct. at 2878 n. 4, 2880 n. 13. The Court noted that Youngs’ informational pamphlets “cannot be characterized merely as proposals to engage in commercial transactions.” Id. at 66, 103 S.Ct. at 2880. Instead, their identity was a hybrid — part commercial solicitation, part discussion of public issues — and the necessity of classifying them as “commercial” or “noncommercial” speech presented the Court with a problem. In responding to this hybrid speech, the Court rejected several possible bright-line tests: The mere fact that these pamphlets are conceded to be advertisements clearly does not compel the conclusion that they are commercial speech. Similarly, the reference to a specific product does not by itself render the pamphlets commercial speech. Finally, the fact that Youngs has an economic motivation for mailing the pamphlets would clearly be insufficient by itself to turn the materials into commercial speech. Id. at 66-67, 103" }, { "docid": "23053859", "title": "", "text": "considered the definition of commercial speech came three years later. In Bolger v. Youngs Drug Products Corp., the Supreme Court considered whether informational pamphlets distributed by a contraceptive manufacturer and promoting the use of prophylactics were commercial speech. 463 U.S. 60, 62, 65-66, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983). The Supreme Court recognized that “the core notion of commercial speech [is] speech which does no more than propose a commercial transaction.” Id. at 66, 103 S.Ct. 2875 (internal quotation marks omitted). Nevertheless, the Supreme Court concluded that the pamphlets were commercial speech: The mere fact that these pamphlets are conceded to be advertisements clearly does not compel the conclusion that they are commercial speech. Similarly, the reference to a specific product does not by itself render the pamphlets commercial speech. Finally, the fact that [the manufacturer] has an economic motivation for mailing the pamphlets would clearly be insufficient by itself to turn the materials into commercial speech. The combination of all these characteristics, however, provides strong support for the District Court’s conclusion that the informational pamphlets are properly characterized as commercial speech. Id. at 66-67, 103 S.Ct. 2875 (citations omitted). The Court went on to say that “[a] company has the full panoply of protections available to its direct comments on public issues, so there is no reason for providing similar constitutional protection when such statements are made in the context of commercial transactions.” Id. at 68, 103 S.Ct. 2875. Thus, as one commentator has put it, speech is commercial under Bolger if: “(1) [i]t is an advertisement of some form, (2) it refers to a specific product, and (3) the speaker has an economic motivation for the speech.” Erwin Chemerinsky, Constitutional Law: Principles and Policies § 11.3.7.2. The speech affected by the petition support clause is not commercial speech under Bolger. A statement compelled in response to an ITC questionnaire is not an advertisement, nor does it refer to a specific product. SKF may have had “an economic motivation” for answering the questionnaire, but, as Bolger makes clear, “an economic motivation ... would clearly be insufficient by itself" }, { "docid": "17065677", "title": "", "text": "properly be characterized as commercial when (1) the speech is admittedly advertising, (2) the speech references a specific product, and (3) the speaker has an, economic motive for engaging in the speech. Bolger, 463 U.S. at 66-67, 103 S.Ct. 2875. See also Ass’n of Nat’l. Advertisers, Inc. v. Lungren, 44 F.3d 726, 728 (9th Cir.1994) (applying the Bolger factors). All three of the Bolger factors are present in the speech that the California statute and regulations are designed to regulate. Section 651(h) specifies what information licensed physicians and surgeons may include in their “[a]dvertising.” Permissible advertising content includes the practitioner’s name, an office address and telephone number, hours of operation, foreign language ability,\" an approved board certification, insurance plans accepted, schools attended, publications authored, teaching positions held, hospital affiliations, fees charged, installment payments accepted, lawful images of the practitioner, the trade names of goods advertised, public health information, and other factual information that is not misleading. Cal. Bus. & Prof.Code § 651(h)(l)-(17). The statute thus identifies that the object of its regulation is “advertising.” The advertising regulated relates to a specific product, medical services. Finally, the advertiser has an economic motive for engaging in this kind of speech, which is to solicit a patient base. Accordingly, the district court correctly applied the standard of intermediate scrutiny that governs commercial speech. Cf. In re R.M.J., 455 U.S. 191, 194, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982) (deeming a similar statute that specified ten permissible categories of information for lawyer advertisements was a regulation of commercial speech). B. Application of Central Hudson. In regard to the permissible regulation of commercial speech, the Supreme Court in Central Hudson stated: In commercial speech cases ... a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether" }, { "docid": "17201630", "title": "", "text": "103 S.Ct. 2875 (quoting Ohralik, 436 U.S. at 455-56, 98 S.Ct. 1912); see also City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 423, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993); Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 473-74, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989). Bolger directs a reviewing court to look to three factors in determining whether a form of communication merits full or reduced First Amendment protection. These factors are: (1) whether the speech is eoncededly an advertisement; (2) whether the speech refers to a specific product; and (3) whether the speaker has an economic motivation for disseminating the speech. Bolger, 463 U.S. at 66, 103 S.Ct. 2875. If all three factors are present, the speech “may properly be characterized as commercial speech.” Wall Street Publishing, 851 F.2d at 372 (citing Bolger, 463 U.S. at 66-67, 103 S.Ct. 2875). See also Association of National Advertisers, 44 F.3d at 728; U.S. Healthcare v. Blue Cross of Greater Philadelphia, 898 F.2d 914 (3d Cir.1990). The application of these factors directs the conclusion that manufacturer sponsorship of CME seminars at which the sponsor’s products are discussed and the distribution of enduring materials focusing on the manufacturer’s product are properly classified as commercial speech. Despite plaintiffs protestations to the contrary, the activities at issue do “propose a commercial transaction” as they suggest that a physician should prescribe — and a consumer therefore will purchase — the subject drug. Virginia State Board of Pharmacy, 425 U.S. at 762, 96 S.Ct. 1817. As to the first prong of Bolger, the court finds that these activities are advertisements as that term is commonly understood. An advertisement “call[s] public attention to, especially by emphasizing desirable qualities so as to arouse a desire to buy or patronize.” Webster’s Ninth New Collegiate Dictionary (1990). Through distributing enduring materials and sponsoring CME seminars, drug manufacturers call a physician’s attention to the subject drug product, show that the drug effectively treats a certain condition (emphasize a desirable quality) in the hopes that the physician will prescribe (buy or patronize) the" }, { "docid": "3677279", "title": "", "text": "apply to noncommercial speech. By its terms, the Resolution reaches entities that “provide[ ] information about pregnancy-related services, for a fee or as a free service.” (ECF No. 1-2, at 2 (emphasis added)). Plaintiff itself provides “services including pregnancy testing, referral services, and confidential discussion of pregnancy options,” all free of charge. (ECF No. 1, Compl. ¶¶ 12-13). In providing these services, there is no indication that Plaintiff is acting out of economic interest. Rather, Plaintiff is allegedly motivated by social concerns. Cf. In re Primus, 436 U.S. 412, 437-38 & n. 32, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978) (applying higher level of scrutiny where lawyer offered free legal services for the purposes of the “advancement of beliefs and ideas,” as opposed to services offered for commercial gain). Nor does any of the speech here “propose a commercial transaction,” as Plaintiff does not engage in any commercial transactions with its patrons at all. See, e.g., Black’s Law Dictionary (9th ed.2009) (defining commerce as the “exchange,” as opposed to free provision, “of goods and services”). See, e.g., O’Brien v. Mayor & City Council of Baltimore, No. MJG-10-760, 768 F.Supp.2d 804, 812-15, 2011 WL 572324, *6-7, slip op. at 17-18 (D.Md. Jan. 28, 2011), ECF No. 32 (finding that offering of free services by pregnancy center did not render its speech commercial). Defendants suggest that the commercial disclosure cases described above “have bearing” on the standard of scrutiny applicable in this case even if the Resolution concerns noncommercial speech. But the fact that the Supreme Court has approved of factual disclosure requirements as to commercial speech does not mean it endorses such requirements for all forms of speech. As a general matter, concepts from the commercial arena cannot be so easily transplanted into a non-commercial context. Ohralik, 436 U.S. at 456, 98 S.Ct. 1912 (“To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment’s guarantee with respect to the latter kind of speech.”). In fact, the Supreme Court has said that the deferential approach" }, { "docid": "5741976", "title": "", "text": "has enunciated certain principles with some consistency in drawing “the ‘common-sense’ distinction between speech proposing a commercial transaction ... and other varieties of speech.” Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455-56, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978) (quoting Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 n. 24, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976)). To begin with, a representation is not necessarily commercial speech merely because — by way of example — it is contained in an advertisement, made with an economic motive, or refers to a specific product, although the combination of those characteristics strongly supports classification as commercial speech. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 66, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983); see also City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 420-21, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993) (noting the fact that a representation is contained in an advertisement is insufficient to strip that representation of the protections of the First Amendment). Rather, the difference between commercial speech and noncommercial speech “is a matter of degree.” Discovery Network, 507 U.S. at 423, 113 S.Ct. 1505. In a case involving a company’s informational pamphlets on its contraceptive products, the Supreme Court “made clear that advertising which ‘links a product to a current public debate’ is not thereby entitled to the constitutional protection afforded noncommercial speech,” despite “the fact that [the pamphlets] contain discussions of important public issues.” Bolger, 463 U.S. at 67-68, 103 S.Ct. 2875 (quoting Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 563 n. 5, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980)). Although the pamphlets could not “be characterized merely as proposals to engage in commercial transactions” and contained noncommercial speech, thus taking them out of the realm of the “core notion of commercial speech,” on balance they nonetheless constituted commercial speech. Id. at 66-68, 103 S.Ct. 2875 (citations omitted). In so holding, the Court emphasized that “[a] company has the full panoply of protections available to its direct comments on" }, { "docid": "4818935", "title": "", "text": "conclusion that [speech is] properly characterized as commercial speech,” Bolger, 463 U.S. at 67, 103 S.Ct. 2875, it is not necessary that each of the characteristics “be present in order for speech to be commercial,” id. at 67 n. 14,103 S.Ct. 2875. Here, the district court abruptly concluded, “[u]nder both Bolger and Central Hudson,” that “the speech regulated by the Ordinance is not commercial speech.” O’Brien, 768 F.Supp.2d at 813. Focusing on the plaintiff Center, the court reasoned that “[t]he overall purpose of the advertisements, services, and information offered by the CENTER is not to propose a commercial transaction, nor is it related to the CENTER’S economic interest.” Id. Rather, the court determined, “[t]he CENTER engages in speech relating to abortion and birth-control based on strongly held religious and political beliefs rather than commercial interests or profit motives.” Id. (citing official statement of Catholic Church). Ruling thusly, the district court accepted as fact the Center’s assertion that its motives are entirely religious or political. But that assertion was not at all undisputed. Thus, discovery is needed to substantiate, inter alia, whether the Center possesses economic interests apart from its ideological motivations. Such discovery is “especially important” where, as here, “the relevant facts are exclusively in the control of the [summary judgment movant]” or the “case involves complex factual questions about intent and motive.” See Harrods Ltd., 302 F.3d at 247. In any event, the potential commercial nature of speech does not hinge solely on whether the Center has an economic motive, as even Bolger does not preclude classification of speech as eom- mercial in the absence of the speaker’s economic motivation. See 463 U.S. at 67 n. 14, 103 S.Ct. 2875. Because the Ordinance compels a disclaimer, the “lodestars in deciding what level of scrutiny to apply ... must be the nature of the speech taken as a whole and the effect of the compelled statement thereon.” Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). In other words, context matters. From a First Amendment free speech perspective," }, { "docid": "7043025", "title": "", "text": "Bolger, 463 U.S. at 66, 103 S.Ct. at 2880 (citations and internal quotation marks omitted). Outside this so-called “core” lie various forms of speech that combine commercial and noncommercial elements. Whether a communication combining those elements is to be treated as commercial speech depends on factors such as whether the communication is an advertisement, whether the communication makes reference to a specific product, and whether the speaker has an economic motivation for the communication. See id. at 66-67, 103 S.Ct. at 2879-81. Bolger explained that while none of these factors alone would render the speech in question commercial, the presence of all three factors provides “strong support” for such a determination. Id.; see also New York State Association of Realtors, Inc. v. Shaffer, 27 F.3d 834, 840 (2d Cir.1994) (considering proper classification of speech combining commercial and noncommercial elements). We are unpersuaded by Bad Frog’s attempt to separate the purported social commentary in the labels from the hawking of beer. Bad Frog’s labels meet the three criteria identified in Bolger: the labels are a form of advertising, identify a specific product, and serve the economic interest of the speaker. Moreover, the purported noncommercial message is not so “inextricably intertwined” with the commercial speech as to require a finding that the entire label must be treated as “pure” speech. See Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 474, 109 S.Ct. 3028, 3031, 106 L.Ed.2d 388 (1989). Even viewed generously, Bad Frog’s labels at most “link[ ] a product to a current debate,” Central Hudson, 447 U.S. at 563 n. 5, 100 S.Ct. at 2350 n. 5, which is not enough to convert a proposal for a commercial transaction into “pure” noncommercial speech, see id. Indeed, the Supreme Court considered and rejected a similar argument in Fox, when it determined that the discussion of the noncommercial topics of “how to be financially responsible and how to run an efficient home” in the course of a Tupperware demonstration did not take the demonstration out of the domain of commercial speech. See Fox, 492 U.S. at" }, { "docid": "23370420", "title": "", "text": "speech as though they do not overlap. Amway contends that such treatment ignores that political speech can arise from commercial motives or may address areas of great public concern. Although Amway raises legitimate points about the overlap between commercial and noncommercial speech, between economic and non-economic motivation for speech, and about the variable interest a state has in protecting a plaintiffs reputation depending on the plaintiffs status as a public or private figure, Supreme Court precedent prevents us from importing the actual-malice standard into cases involving false commercial speech. To begin with, the Co'urt has rejected attempts to blur the line between commercial speech and other types of expression. In Central Hudson, the majority rejected the rationale set forth in a concurrence that “[ajpparently ... would accord full First Amendment protection to all promotional advertising that includes claims ‘relating to ... questions frequently discussed and debated by our political leaders.’” Id. at 563 n. 5, 100 S.Ct. 2343 (quoting id. at 581, 100 S.Ct. 2343) (Stevens, J., concurring). In rejecting this approach, the majority reasoned that “we think it would blur further the line the Court has sought to draw in commercial speech cases.” M Further, the Court has consistently said that speech protected in one context is not protected when the purpose of the speech is commercial. In Bolger, the Court held that “advertising which ‘links a product to a current public debate’ is not thereby entitled to the constitutional protection afforded noncommercial speech.” 463 U.S. at 68, 103 S.Ct. 2875 (quoting Central Hudson, 447 U.S. at 563 n. 5, 100 S.Ct. 2343). “Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues.” Id. Somewhat more recently, in Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985), the Court affirmed its Central Hudson and Bolger holdings. Zauderer was a lawyer who had been sanctioned by the disciplinary committee of his state supreme court for using deceptive newspaper advertisements. He claimed that his speech was protected because some" } ]

[ { "docid": "13906189", "title": "", "text": "involving real property should be deemed perfected, section 547(e)(1)(A) expressly includes transfers of “the interest of a seller or purchaser under a contract for the sale of real property.” Had Congress intended to exclude interests in land contracts from “property” subject to the preference provision, it would not have bothered to include such interests in its definition of perfection. More significantly, the appellants ignore the broad definition given to the phrase “property of the estate” by section 541 of the Code. Such property includes “all legal or equitable interests of the debtor in property.” 11 U.S.C. § 541(a)(1) (1982); see also In re Beavers, 26 B.R. 502, 504 (Bankr.N.D.Ala.1983) (“property of the estate” includes the debtor’s possessory and purchase rights under a valid oral agreement for the sale of land); In re Rose, 7 B.R. 911, 912-13 (Bankr.S.D.Tex.1981) (the purchaser’s rights under a “contract for deed,” which creates no legal or equitable title in the purchaser until he has fully performed his part of the contract, are “property of the estate”). The term “property” used in section 547 enjoys a similarly broad scope. Frontier’s interest in the contracts it acquired from Kenman, therefore, is “property of the debtor” subject to the preference provisions. Appellants propose a second theory of why the transaction did not involve “property of the debtor.” They assert that Frontier’s failure to record the warranty deed constituted a wrongful detention of their property and therefore subjected the apartment building to a constructive trust in their favor pursuant to California Civil Code § 2223. Appellants conclude that, because section 541 of the Code excludes from the debtor’s estate property held solely in trust for others, see 11 U.S.C. § 541(d) (1982); In re Bruce Farley Corp., 612 F.2d 1197 (9th Cir.1980), the apartments could not have been the subject of a preferential transfer. Although some courts have treated constructive trusts under state law as trusts for bankruptcy purposes, see, e.g., In re Quality Holstein Leasing, 752 F.2d 1009, 1012-13 (5th Cir.1985), “we cannot accept the proposition that the bankruptcy estate is automatically deprived of any funds that state" } ]

[ { "docid": "12698018", "title": "", "text": "because he was a victim of BRNA’s misconduct. The term “property of the debtor” is not defined in the Bankruptcy Code. However, we define the term broadly. Elliot v. Frontier Properties (In re Lewis W. Shurtleff, Inc.), 778 F.2d 1416, 1419 (9th Cir.1985). Generally, property belongs to the debtor for purposes of § 547 if its transfer will deprive the bankruptcy estate of something which could otherwise be used to satisfy the claims of creditors. Cf. Coral Petroleum, Inc. v. Banque Paribas-London, 797 F.2d 1351, 1355-56 (5th Cir.1986) (debtor has an interest in property under § 547 if the transfer diminishes the bankruptcy estate). Here, the money BRNA used to purchase bullion came from comingled bank accounts under BRNA’s control. Because this money could have been used to pay other creditors, it presumptively constitutes property of the debtor’s estate. Henderson v. Allred (In re Western World Funding, Inc.), 54 B.R. 470, 475 (Bankr.D. Nev.1985). The dual purpose of § 547 warrants reaching this result. That purpose is to discourage creditors from racing to the courthouse to dismember the debtor during its slide into bankruptcy and to further the prime bankruptcy policy of equal distribution among similarly situated creditors. Valley Bank v. Vance (In re Vance), 721 F.2d 259, 260 (9th Cir.1983). There is evidence that Bozek directed BRNA to transfer bullion to him after learning of BRNA’s financial difficulties. More importantly, Bozek’s acquisition of bullion during the ninety day preference period allowed him to recover 100% of his claim against BRNA, while other customers were left to share equally in BRNA’s remaining assets. While we appreciate Bozek’s plight as a victim, we are also mindful of our obligation to secure an equitable distribution of BRNA’s assets among all its creditors. Bozek also contends that his agreement with BRNA created an express trust under California law that prevented his funds and their product, the bullion, from becoming property of the debtor. Property held in trust by a bankruptcy debtor belongs to the beneficiary of the trust. Elliot v. Bumb, 356 F.2d 749, 753 (9th Cir.), cert. denied, 385 U.S. 829, 87" }, { "docid": "11766240", "title": "", "text": "which states in its entirety: On the facts of this case we hold that, to the extent Mitsui [the trust beneficiary] was required to “trace” its money wrong fully withheld by Unicom, see In re Esgro, Inc., 645 F.2d at 797-98; In re Sierra Steel, Inc., 96 B.R. at 273-74, it has done so. 13 F.3d at 325 n. 5. Taylor notes that in Unicom, the check wrongfully obtained by the debtor was deposited in the debtor’s general checking account. On the basis of this factual similarity, Taylor contends it has traced the funds to the extent necessary. Unicom nowhere discusses tracing other than in the footnote. It does not say tracing is unnecessary, but that it has been done to the extent necessary. It does not reject or distinguish prior Ninth Circuit precedent, but suggests that precedent has been complied with. Unicom thus does not demonstrate any intent to lessen the normal standards required for tracing. Facts may have existed, for example, for the court to conclude that the “lowest intermediate balance” rule applied. We do not find Unicom to require a lessened standard of tracing. The trustee presented evidence to show that the transfers were made from a general account of Advent. This is sufficient to shift the burden to Taylor to demonstrate the existence of a genuine issue of material fact by tracing the funds allegedly held in constructive trust. In Bullion Reserve, the defendant in an action to recover a preferential transfer under section 547 contended that bullion he received from the debtor, BRNA, was not property of the debtor because it had been purchased with money fraudulently obtained from other participants. The Court of Appeals stated: “Here, the money BRNA used to purchase bullion came from comin-gled bank accounts under BRNA’s control. Because this money could have been used to pay other creditors, it presumptively constitutes property of the debtor’s estate.” 836 F.2d at 1217. In a footnote, the court stated: This presumption may be overcome in a variety of ways. For example, under a constructive trust theory, a program participant could claim any funds" }, { "docid": "12698025", "title": "", "text": "We also noted that the Bankruptcy Code’s purpose was not to protect one victim of a debtor’s fraud at the expense of others. Id. Our reasoning in Graulty applies here. BRNA was a fraudulent business of the type Congress did not intend to protect under § 547(c)(2). Moreover, it would be inequitable to allow Bozek to obtain a 100% recovery on his claim while relegating other defrauded program participants to general unsecured creditor status in BRNA’s bankruptcy proceeding. Equity requires that all these creditors share equally in whatever assets are available. Id. at 217. AFFIRMED. . Bozek sent funds to BRNA on December 21, 1981; March 19 and June 14, 1982; and June 6, 1983. . The Bankruptcy Code was amended by the Bankruptcy Amendments and Federal Judgeship Act of 1984. Pub.L. No. 98-353, § 553(a), 98 Stat. 333, 392 (1984). However, those amendments do not apply to this case because BRNA filed its bankruptcy petition in 1983. Id.; see Henderson v. Allred (In re Western World Funding, Inc.), 54 B.R. 470, 473 n. 1 (Bankr.D. Nev.1985). Accordingly, all references in this decision to the Bankruptcy Code are to the Bankruptcy Reform Act of 1978, 11 U.S.C. §§ 101-151326 (1982). . This presumption may be overcome in a variety of ways. For example, under a constructive trust theory, a program participant could claim any funds traced through BRNA's comingled accounts. See Elliot v. Bumb, 356 F.2d 749, 754 (9th Cir.), cert. denied, 385 U.S. 829, 87 S.Ct. 67, 17 L.Ed.2d 66 (1966). But here, Bozek is unable to trace his funds to the bullion he received from BRNA. . Apart from the brochure, no other document mentions the existence of a trust relationship. . California trust law is not to the contrary. See, e.g., Kobida v. Hinkelmann, 53 Cal.App.2d 186, 195, 127 P.2d 657, 661-62 (1942) (noting that when a trustee is insolvent, and the rights of other creditors are involved, a beneficiary must trace his funds through a trustee's comin-gled account). . To support his contention that he is not BRNA’s creditor, Bozek erroneously relies on Richardson v. Shaw," }, { "docid": "11766241", "title": "", "text": "We do not find Unicom to require a lessened standard of tracing. The trustee presented evidence to show that the transfers were made from a general account of Advent. This is sufficient to shift the burden to Taylor to demonstrate the existence of a genuine issue of material fact by tracing the funds allegedly held in constructive trust. In Bullion Reserve, the defendant in an action to recover a preferential transfer under section 547 contended that bullion he received from the debtor, BRNA, was not property of the debtor because it had been purchased with money fraudulently obtained from other participants. The Court of Appeals stated: “Here, the money BRNA used to purchase bullion came from comin-gled bank accounts under BRNA’s control. Because this money could have been used to pay other creditors, it presumptively constitutes property of the debtor’s estate.” 836 F.2d at 1217. In a footnote, the court stated: This presumption may be overcome in a variety of ways. For example, under a constructive trust theory, a program participant could claim any funds traced through BRNA’s comingled accounts. See Elliott v. Bumb, 356 F.2d 749, 754 (9th Cir.), cert. denied, 385 U.S. 829, 87 S.Ct. 67, 17 L.Ed.2d 66 (1966). But here, Bozek is unable to trace his funds to the bullion he received from BRNA. 836 F.2d at 1217 n. 3. See also R & T Roofing, 887 F.2d at 988 (preferential transfer case; the trustee’s showing that the payments had been made from a commercial business account shifted the burden to the opposing party to demonstrate an issue of fact as to whether the funds could be characterized as trust assets); Golden Triangle, 171 B.R. at 84 (Ashland, J., concurring). Taylor has failed to conduct any tracing. In fact, the evidence presented by Taylor indicates tracing is not possible. See, e.g., Task Force Report, Taylor’s ER at 614 (task force unable in most cases to correlate specific deposits with specific disbursements); Declaration of Roger Shlonsky, Trustee’s ER 6, at 403-04 (setting forth the information that would be required in order to determine whether the funds in" }, { "docid": "14920527", "title": "", "text": "significance to DP Fitness’ satisfaction of DPC’s debt. Alagasco cites Barber v. Riverside International Trucks, Inc. (In re Pearson Industries, Inc.), 142 B.R. 831, 845 (Bankr.C.D.Ill.1992), for the proposition that when a debtor’s obligation is paid by a related, but legally separate, entity which also happens to be in bankruptcy, there is no transfer subject to recovery under § 547. Generally speaking, a third party’s payment of a debtor’s obligation does not constitute a preferential transfer, as the debtor’s estate does not suffer a loss in that situation. See Matter of Erie Forge & Steel Corp., 456 F.2d 801, 806 n. 9 (3d Cir.1972); Stingley v. AlliedSignal, Inc. (In re Libby Int’l, Inc.), 247 B.R. 463, 466, (8th Cir. BAP 2000). Notwithstanding the general rule with respect to third party payors, for purposes of § 547(b), the issue is whether DPC had an interest in the property transferred. In Begier v. Internal Revenue Service, 496 U.S. 53, 58, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990), the Supreme Court concluded that the “property” subject to avoidance under § 547(b) is “that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings.” Stated differently, a transfer is subject to avoidance if the transfer diminished the resources from which all of a debtor’s creditors could have sought payment. Southmark Corp. v. Grosz (Matter of Southmark Corp.), 49 F.3d 1111, 1117 (5th Cir.1995); Hansen v. MacDonald Meat Co. (In re Kemp Pac. Fisheries, Inc.), 16 F.3d 313, 316 (9th Cir.1994) (“the transfer must diminish directly or indirectly the fund to which creditors of the same class can legally resort for the payment of their debts, to such an extent that it is impossible for other creditors of the same class to obtain as great a percentage as the favored one”); Coral Petroleum, Inc. v. Banque Paribas-London, 797 F.2d 1351, 1355-56 (5th Cir.1986); Danning v. Bozek (In re Bullion Reserve of North America), 836 F.2d 1214, 1217 (9th Cir.1988). The Court is not convinced that DPC lacked an interest in the property transferred. In its" }, { "docid": "12698023", "title": "", "text": "(1982). The terms “debt” and “claim” are coextensive. When a creditor has a claim against the debtor, the debtor owes a debt to the creditor. H.R.Rep. No. 595, 95th Cong. 1st Sess. 310, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6267; S.Rep. No. 989, 95th Cong., 2d Sess. 23, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5809; see also Henderson, 54 B.R. at 476. Bozek accrued a claim against BRNA when he paid for the bullion. Likewise, BRNA incurred a debt to Bozek as of this time. Therefore, the subsequent transfer of bullion was on account of an antecedent debt. 3. Exceptions to § 547(b) Bozek has the burden of proving that the bullion transfer is excepted from the trustee’s avoidance power. In re American Ambulance Service, Inc., 46 B.R. 658, 660 (Bankr.S.D.Cal.1985). Bozek first contends that the transfer cannot be set aside because it was a contemporaneous exchange for new value under 11 U.S. C. § 547(c)(1). In order for a transfer to come within this exception, it actually must be “substantially contemporaneous” with the giving of new value by the creditor. Ray v. Security Mut. Finance Corp. (In re Arnett), 731 F.2d 358, 364 (6th Cir.1984). Bozek has not shown that he received the bullion near the time he delivered funds to BRNA. Bozek last paid BRNA for bullion on June 6, 1983, but he did not receive the bullion until August 22, 1983. The seventy-seven day time span in this case between Bozek’s payments and BRNA’s bullion transfer is too great to be considered “substantially contemporaneous.” Bozek also argues that the transfer cannot be set aside because it was made in the ordinary course of business. See 11 U.S.C. § 547(c)(2) (1982). Recently, this court held that transfers made in a “Ponzi” scheme are not made in the ordinary course of business. Graulty v. Brooks (Matter of Bishop, Baldwin, Rewald, Dillingham & Wong, Inc.), 819 F.2d 214, 216 (9th Cir.1987). In Graulty, we explained that Congress intended the ordinary course of business exception to apply only to transfers by legitimate business enterprises. Id. at 217." }, { "docid": "12698021", "title": "", "text": "Bozek cannot trace the money he gave BRNA to the bullion he received. Therefore, the bullion is property of the debtor under § 547. 2. Creditor and Antecedent Debt Bozek contends he is not a creditor and that the transfer was not on account of an antecedent debt because BRNA did not owe him anything before making the bullion transfer. Bozek bases his argument on the idea that he never had a creditor’s claim against BRNA because bullion was transferred to him upon demand and he did not suffer economic injury. This argument ignores the Bankruptcy Code’s broad definitions. A “creditor” is defined as an “entity that has a claim against the debtor.” 11 U.S.C. § 101(9) (1982). “Claim” is defined as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” 11 U.S.C. § 101(4) (1982). The legislative history of the Bankruptcy Code indicates that Congress intended to provide the broadest possible definition of “claim” when it enacted § 101(4). See H.R.Rep. No. 595, 95th Cong., 1st Sess. 309, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6266; S.Rep. No. 989, 95th Cong. 2d Sess. 21, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5808; see also Ohio v. Kovacs, 469 U.S. 274, 279, 105 S.Ct. 705, 708-09, 83 L.Ed.2d 649 (1985); Kallan v. Litas, 47 B.R. 977, 982-83 (N.D.Ill.1985). Under these definitions, it is clear that Bozek became a creditor when he transferred funds to BRNA for the purchase of bullion. At that moment, Bozek accrued a right to demand bullion from BRNA. This right, although unmatured, constituted a “claim” under the Bankruptcy Code. See Grover v. Gulino (In re Gulino), 779 F.2d 546, 551-52 (9th Cir.1985) (transferee becomes a creditor by making a payment under a contract to purchase property). Bozek’s contention that the transfer of bullion was not on account of an antecedent debt is also incorrect. “Antecedent debt” is not defined in the Bankruptcy Code. However, “debt” is defined as “a liability on a claim.” 11 U.S.C. § 101(11)" }, { "docid": "23605838", "title": "", "text": "the same class to obtain as great a percentage as the favored one. 4 Collier on Bankruptcy ¶ 547.03, at 547-26 (15th ed. 1993) (footnote omitted); see also In re Bullion Reserve of North America, 836 F.2d at 1217 (“Generally, property belongs to the debtor for purposes of § 547 if its transfer will deprive the bankruptcy estate of something which would otherwise be used to satisfy the claims of creditors.”) However, an exception to the above general rule occurs when a third party lends money to a debtor “for the specific purpose of paying a selected creditor.” In re Smith, 966 F.2d at 1533 (emphasis in original). This exception, known as the “earmarking doctrine,” is justified by the fact that in such a case the funds neither are controlled by, nor belong to, the debtor. The money never becomes part of the debtor’s assets; rather, the transaction merely substitutes one creditor for another without diminishing the value of the bankruptcy estate. Grubb v. General Contract Purchase Corp., 94 F.2d 70, 72-73 (2d Cir.1938). Most of the value of an asset inheres in the person who controls it. Thus, a key inquiry in the analysis of whether a third party transfer diminishes the value of the debtor’s estate is the source of control over the new funds: When a debtor uses the funds of a third party to pay an obligation of the debtor the Court must look to the source of the control over the disposition of the funds in order to determine whether a preference exists. If the debtor controls the disposition of the funds and designates the creditor to whom the monies will be paid independent of a third party whose funds are being used in ... payment of the debt, then the payments made by the debtor to the creditor constitute a preferential transfer. Hargadon v. Cove State Bank (In re Jaggers), 48 B.R. 33, 36 (Bankr.W.D.Texas 1985); see also Coral Petroleum, Inc. v. Banque Paribas-London, 797 F.2d 1351, 1358 (5th Cir.1986) (“the key to the resolution of this dispute centers on whether [the debtor] had" }, { "docid": "12698024", "title": "", "text": "contemporaneous” with the giving of new value by the creditor. Ray v. Security Mut. Finance Corp. (In re Arnett), 731 F.2d 358, 364 (6th Cir.1984). Bozek has not shown that he received the bullion near the time he delivered funds to BRNA. Bozek last paid BRNA for bullion on June 6, 1983, but he did not receive the bullion until August 22, 1983. The seventy-seven day time span in this case between Bozek’s payments and BRNA’s bullion transfer is too great to be considered “substantially contemporaneous.” Bozek also argues that the transfer cannot be set aside because it was made in the ordinary course of business. See 11 U.S.C. § 547(c)(2) (1982). Recently, this court held that transfers made in a “Ponzi” scheme are not made in the ordinary course of business. Graulty v. Brooks (Matter of Bishop, Baldwin, Rewald, Dillingham & Wong, Inc.), 819 F.2d 214, 216 (9th Cir.1987). In Graulty, we explained that Congress intended the ordinary course of business exception to apply only to transfers by legitimate business enterprises. Id. at 217. We also noted that the Bankruptcy Code’s purpose was not to protect one victim of a debtor’s fraud at the expense of others. Id. Our reasoning in Graulty applies here. BRNA was a fraudulent business of the type Congress did not intend to protect under § 547(c)(2). Moreover, it would be inequitable to allow Bozek to obtain a 100% recovery on his claim while relegating other defrauded program participants to general unsecured creditor status in BRNA’s bankruptcy proceeding. Equity requires that all these creditors share equally in whatever assets are available. Id. at 217. AFFIRMED. . Bozek sent funds to BRNA on December 21, 1981; March 19 and June 14, 1982; and June 6, 1983. . The Bankruptcy Code was amended by the Bankruptcy Amendments and Federal Judgeship Act of 1984. Pub.L. No. 98-353, § 553(a), 98 Stat. 333, 392 (1984). However, those amendments do not apply to this case because BRNA filed its bankruptcy petition in 1983. Id.; see Henderson v. Allred (In re Western World Funding, Inc.), 54 B.R. 470, 473 n. 1" }, { "docid": "12698026", "title": "", "text": "(Bankr.D. Nev.1985). Accordingly, all references in this decision to the Bankruptcy Code are to the Bankruptcy Reform Act of 1978, 11 U.S.C. §§ 101-151326 (1982). . This presumption may be overcome in a variety of ways. For example, under a constructive trust theory, a program participant could claim any funds traced through BRNA's comingled accounts. See Elliot v. Bumb, 356 F.2d 749, 754 (9th Cir.), cert. denied, 385 U.S. 829, 87 S.Ct. 67, 17 L.Ed.2d 66 (1966). But here, Bozek is unable to trace his funds to the bullion he received from BRNA. . Apart from the brochure, no other document mentions the existence of a trust relationship. . California trust law is not to the contrary. See, e.g., Kobida v. Hinkelmann, 53 Cal.App.2d 186, 195, 127 P.2d 657, 661-62 (1942) (noting that when a trustee is insolvent, and the rights of other creditors are involved, a beneficiary must trace his funds through a trustee's comin-gled account). . To support his contention that he is not BRNA’s creditor, Bozek erroneously relies on Richardson v. Shaw, 209 U.S. 365, 28 S.Ct. 512, 52 L.Ed. 835 (1908). In Richardson, the Supreme Court found that no preference arose when an insolvent stockbroker returned stock he held for a client. The Court held that the broker was \"essentially a pledgee.” 209 U.S. at 380, 28 S.Ct. at 517. The Court also implied that the client was not a creditor because he held a pledgor's interest in the stock he received. Id. However, Richardson was decided under prior bankruptcy law when the definition of “claim\" was not as broad. See Matter of Mandalay Shores Cooperative Housing Association, 54 B.R. 632, 635 (Bankr.M.D.Fla.1984) (Congress intended to give \"claim\" in the Bankruptcy Code a broader definition than under previous law). Under modern bankruptcy law, the Richardson client would be a creditor because his pledgor’s interest would be a claim. See Herman Cantor Corp. v. Central Fidelity Bank (In re Herman Cantor Corp.), 15 B.R. 747, 749 (Bankr.E.D.Va.1981). . Bozek claims that he received bullion at Perpetual Storage Incorporated at the time that he delivered funds to BRNA." }, { "docid": "12698028", "title": "", "text": "However, the record indicates BRNA did not buy and store metal for Bozek upon receiving his money. Rather, BRNA comingled Bozek’s money with that of other customers and purchased bullion for storage in very small amounts. Therefore, it cannot be said that BRNA purchased bullion for any particular customer. . A \"Ponzi” scheme is any sort of fraudulent arrangement that uses later acquired funds or products to pay off previous investors. See Merrill v. Abbott (In re Independent Clearing House), 41 B.R. 985, 994 n. 12 (Bankr.D.Utah 1984) (describing history of \"Ponzi” schemes), modified, 62 B.R. 118 (D.Utah 1986). The record indicates that BRNA was conducting such a scheme when it used newly acquired funds, from its comingled accounts, to buy bullion for customers who demanded their metal. .The ordinary course of business exception is inapplicable for another reason. The Bankruptcy Code only protects a preferential transfer that is made within forty-five days after the debtor incurs a debt to the creditor. 11 U.S.C. § 547(c)(2)(B) (1982). Here, BRNA owed a debt to Bozek for more than forty-five days before transferring bullion to him." }, { "docid": "12698017", "title": "", "text": "the filing of the debtor’s bankruptcy petition; (7) that enables the creditor to receive more than he would receive if the transfer had not been made and the debtor’s estate liquidated according to the provisions of the bankruptcy code. 11 U.S.C. § 547(b) (1982). The burden of proving the existence of these elements is on the bankruptcy trustee. Grover v. Gulino (In re Gulino), 779 F.2d 546, 549 (9th Cir.1985). Bozek contends that the bankruptcy court erred by finding that (1) the bullion BRNA transferred to him was property of the debtor, (2) he was BRNA’s creditor, and (3) the transfer of bullion was on account of an antecedent debt. Bozek also contends that, if the transfer was a preference, it was excepted from avoidance under § 547(c)(1) and (2). 1. Property of the debtor Bozek argues that the bullion he received was not property of the debtor, BRNA, because it was purchased with money fraudulently obtained from member account program participants. In effect, he argues that he should be allowed to keep the bullion because he was a victim of BRNA’s misconduct. The term “property of the debtor” is not defined in the Bankruptcy Code. However, we define the term broadly. Elliot v. Frontier Properties (In re Lewis W. Shurtleff, Inc.), 778 F.2d 1416, 1419 (9th Cir.1985). Generally, property belongs to the debtor for purposes of § 547 if its transfer will deprive the bankruptcy estate of something which could otherwise be used to satisfy the claims of creditors. Cf. Coral Petroleum, Inc. v. Banque Paribas-London, 797 F.2d 1351, 1355-56 (5th Cir.1986) (debtor has an interest in property under § 547 if the transfer diminishes the bankruptcy estate). Here, the money BRNA used to purchase bullion came from comingled bank accounts under BRNA’s control. Because this money could have been used to pay other creditors, it presumptively constitutes property of the debtor’s estate. Henderson v. Allred (In re Western World Funding, Inc.), 54 B.R. 470, 475 (Bankr.D. Nev.1985). The dual purpose of § 547 warrants reaching this result. That purpose is to discourage creditors from racing to the courthouse" }, { "docid": "12698027", "title": "", "text": "209 U.S. 365, 28 S.Ct. 512, 52 L.Ed. 835 (1908). In Richardson, the Supreme Court found that no preference arose when an insolvent stockbroker returned stock he held for a client. The Court held that the broker was \"essentially a pledgee.” 209 U.S. at 380, 28 S.Ct. at 517. The Court also implied that the client was not a creditor because he held a pledgor's interest in the stock he received. Id. However, Richardson was decided under prior bankruptcy law when the definition of “claim\" was not as broad. See Matter of Mandalay Shores Cooperative Housing Association, 54 B.R. 632, 635 (Bankr.M.D.Fla.1984) (Congress intended to give \"claim\" in the Bankruptcy Code a broader definition than under previous law). Under modern bankruptcy law, the Richardson client would be a creditor because his pledgor’s interest would be a claim. See Herman Cantor Corp. v. Central Fidelity Bank (In re Herman Cantor Corp.), 15 B.R. 747, 749 (Bankr.E.D.Va.1981). . Bozek claims that he received bullion at Perpetual Storage Incorporated at the time that he delivered funds to BRNA. However, the record indicates BRNA did not buy and store metal for Bozek upon receiving his money. Rather, BRNA comingled Bozek’s money with that of other customers and purchased bullion for storage in very small amounts. Therefore, it cannot be said that BRNA purchased bullion for any particular customer. . A \"Ponzi” scheme is any sort of fraudulent arrangement that uses later acquired funds or products to pay off previous investors. See Merrill v. Abbott (In re Independent Clearing House), 41 B.R. 985, 994 n. 12 (Bankr.D.Utah 1984) (describing history of \"Ponzi” schemes), modified, 62 B.R. 118 (D.Utah 1986). The record indicates that BRNA was conducting such a scheme when it used newly acquired funds, from its comingled accounts, to buy bullion for customers who demanded their metal. .The ordinary course of business exception is inapplicable for another reason. The Bankruptcy Code only protects a preferential transfer that is made within forty-five days after the debtor incurs a debt to the creditor. 11 U.S.C. § 547(c)(2)(B) (1982). Here, BRNA owed a debt to Bozek for" }, { "docid": "12698022", "title": "", "text": "§ 101(4). See H.R.Rep. No. 595, 95th Cong., 1st Sess. 309, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6266; S.Rep. No. 989, 95th Cong. 2d Sess. 21, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5808; see also Ohio v. Kovacs, 469 U.S. 274, 279, 105 S.Ct. 705, 708-09, 83 L.Ed.2d 649 (1985); Kallan v. Litas, 47 B.R. 977, 982-83 (N.D.Ill.1985). Under these definitions, it is clear that Bozek became a creditor when he transferred funds to BRNA for the purchase of bullion. At that moment, Bozek accrued a right to demand bullion from BRNA. This right, although unmatured, constituted a “claim” under the Bankruptcy Code. See Grover v. Gulino (In re Gulino), 779 F.2d 546, 551-52 (9th Cir.1985) (transferee becomes a creditor by making a payment under a contract to purchase property). Bozek’s contention that the transfer of bullion was not on account of an antecedent debt is also incorrect. “Antecedent debt” is not defined in the Bankruptcy Code. However, “debt” is defined as “a liability on a claim.” 11 U.S.C. § 101(11) (1982). The terms “debt” and “claim” are coextensive. When a creditor has a claim against the debtor, the debtor owes a debt to the creditor. H.R.Rep. No. 595, 95th Cong. 1st Sess. 310, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6267; S.Rep. No. 989, 95th Cong., 2d Sess. 23, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5809; see also Henderson, 54 B.R. at 476. Bozek accrued a claim against BRNA when he paid for the bullion. Likewise, BRNA incurred a debt to Bozek as of this time. Therefore, the subsequent transfer of bullion was on account of an antecedent debt. 3. Exceptions to § 547(b) Bozek has the burden of proving that the bullion transfer is excepted from the trustee’s avoidance power. In re American Ambulance Service, Inc., 46 B.R. 658, 660 (Bankr.S.D.Cal.1985). Bozek first contends that the transfer cannot be set aside because it was a contemporaneous exchange for new value under 11 U.S. C. § 547(c)(1). In order for a transfer to come within this exception, it actually must be “substantially" }, { "docid": "14920528", "title": "", "text": "under § 547(b) is “that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings.” Stated differently, a transfer is subject to avoidance if the transfer diminished the resources from which all of a debtor’s creditors could have sought payment. Southmark Corp. v. Grosz (Matter of Southmark Corp.), 49 F.3d 1111, 1117 (5th Cir.1995); Hansen v. MacDonald Meat Co. (In re Kemp Pac. Fisheries, Inc.), 16 F.3d 313, 316 (9th Cir.1994) (“the transfer must diminish directly or indirectly the fund to which creditors of the same class can legally resort for the payment of their debts, to such an extent that it is impossible for other creditors of the same class to obtain as great a percentage as the favored one”); Coral Petroleum, Inc. v. Banque Paribas-London, 797 F.2d 1351, 1355-56 (5th Cir.1986); Danning v. Bozek (In re Bullion Reserve of North America), 836 F.2d 1214, 1217 (9th Cir.1988). The Court is not convinced that DPC lacked an interest in the property transferred. In its confirmation order dated December 10, 1999, the Court concluded that, for all intents and purposes, the Debtors were operated as a single company. (Confirmation Order at 25). As the Court understands the Debtors’ pre-petition financial affairs, Foothill Capital loaned money to the Debtors under a “single borrowing based certificate,” and the funds were distributed to the various companies on as-needed basis. (Id.). The Court is under the impression that the money paid to Alagaseo originated from a common fund comprised of loan proceeds from Foothill Capital. While Alagasco’s reliance on Pearson Industries may be well-founded, the parties have not adequately addressed, either factually or legally, the issue of whether DPC had an interest in the property transferred. Resolution of the preference issue will have to await further development, as the Court is not prepared to resolve the issue based on the present record. Conclusion Having given this matter its careful consideration, the Court concludes that the Trustee’s motion for leave to amend complaint should be, and hereby is, GRANTED. As for Alagasco’s motion for summary" }, { "docid": "12698015", "title": "", "text": "of the Intermountain Depository Corporation, its wholly owned subsidiary. In fact, BRNA never fulfilled its obligation to purchase and store bullion for program participants. Instead, BRNA co-mingled funds it received from program participants and deposited those monies into its own general bank accounts. Once in BRNA’s accounts, the participants’ funds were further comingled with income BRNA received from other sources. BRNA then used the money in its accounts to pay various expenses, including its general operating costs. BRNA did store a small amount of bullion at Perpetual Storage Incorporated. However, the amount of bullion BRNA stored at Perpetual Storage Incorporated was insufficient to cover storage orders placed by member account program participants. BRNA frequently had to purchase bullion on the open market to meet liquidation demands. Eventually, BRNA encountered financial difficulties and, on October 3, 1983, filed for relief under Chapter 11 of the Bankruptcy Code. On January 10, 1984, the bankruptcy court converted BRNA’s Chapter 11 reorganization to a Chapter 7 liquidation proceeding. Bozek became a member account program participant in December 1981. Thereafter, between 1981 and 1983, Bozek purchased bullion through BRNA. Like many program participants, Bozek asked BRNA to store his bullion. On August 22, 1983, forty-two days before BRNA filed for Chapter 11 relief, Bozek liquidated his member account and received bullion worth $212,138.60 from BRNA. Subsequently, on August 9, 1984, BRNA’s bankruptcy trustee brought this adversary action against Bozek under 11 U.S.C. § 547 (1982) to recover the bullion as a preferential transfer. The bankruptcy court granted summary judgment in favor of the trustee and the district court affirmed. We review the bankruptcy court’s grant of summary judgment de novo. See Nash v. Kester (In re Nash), 765 F.2d 1410, 1412 (9th Cir.1985). ANALYSIS A bankruptcy trustee may recover property for the benefit of the debtor’s estate if there (1) was a transfer; (2) of property of the debtor; (3) to or for the benefit of a creditor; (4) for or on account of an antecedent debt; (5) made while the debtor was insolvent; (6) made on or within ninety days before the date of" }, { "docid": "12698014", "title": "", "text": "PREGERSON, Circuit Judge: Theodore P. Bozek appeals from a district court’s order affirming a bankruptcy court’s grant of summary judgment in favor of the bankruptcy trustee for Bullion Reserve of North America (BRNA). The trustee, Curtis B. Danning, sued Bozek under 11 U.S.C. § 547(b) to set aside and recover an alleged preferential transfer made by BRNA to Bozek. We affirm. BACKGROUND BRNA was a California corporation that purported to be in the business of buying precious metals (bullion) for the public through a “member account program.” Customers became member account program participants by filling out a short application and paying a nominal administrative fee. Thereafter, program participants were entitled to purchase bullion through BRNA at wholesale prices fixed in the international market. BRNA charged a commission on all bullion orders it executed. BRNA published a brochure describing its program. The brochure warranted that, upon request, BRNA would segregate and store a program participant’s bullion in a storage vault at Perpetual Storage Incorporated. BRNA also represented that the stored bullion would be under the trusteeship of the Intermountain Depository Corporation, its wholly owned subsidiary. In fact, BRNA never fulfilled its obligation to purchase and store bullion for program participants. Instead, BRNA co-mingled funds it received from program participants and deposited those monies into its own general bank accounts. Once in BRNA’s accounts, the participants’ funds were further comingled with income BRNA received from other sources. BRNA then used the money in its accounts to pay various expenses, including its general operating costs. BRNA did store a small amount of bullion at Perpetual Storage Incorporated. However, the amount of bullion BRNA stored at Perpetual Storage Incorporated was insufficient to cover storage orders placed by member account program participants. BRNA frequently had to purchase bullion on the open market to meet liquidation demands. Eventually, BRNA encountered financial difficulties and, on October 3, 1983, filed for relief under Chapter 11 of the Bankruptcy Code. On January 10, 1984, the bankruptcy court converted BRNA’s Chapter 11 reorganization to a Chapter 7 liquidation proceeding. Bozek became a member account program participant in December 1981. Thereafter," }, { "docid": "12698019", "title": "", "text": "to dismember the debtor during its slide into bankruptcy and to further the prime bankruptcy policy of equal distribution among similarly situated creditors. Valley Bank v. Vance (In re Vance), 721 F.2d 259, 260 (9th Cir.1983). There is evidence that Bozek directed BRNA to transfer bullion to him after learning of BRNA’s financial difficulties. More importantly, Bozek’s acquisition of bullion during the ninety day preference period allowed him to recover 100% of his claim against BRNA, while other customers were left to share equally in BRNA’s remaining assets. While we appreciate Bozek’s plight as a victim, we are also mindful of our obligation to secure an equitable distribution of BRNA’s assets among all its creditors. Bozek also contends that his agreement with BRNA created an express trust under California law that prevented his funds and their product, the bullion, from becoming property of the debtor. Property held in trust by a bankruptcy debtor belongs to the beneficiary of the trust. Elliot v. Bumb, 356 F.2d 749, 753 (9th Cir.), cert. denied, 385 U.S. 829, 87 S.Ct. 67, 17 L.Ed.2d 66 (1966). State law determines whether a trust exists in federal bankruptcy proceedings. Toys “R” Us, Inc. v. Esgro, Inc. (Matter of Esgro, Inc.), 645 F.2d 794, 797 (9th Cir.1981). There is no indication that BRNA intended to assume the duties of a trustee. See Cal.Civ.Code § 2222 (West 1985) (repealed July 1,1987) (trust created as to trustee by conduct indicating his acceptance of trust). The member account program brochure specified that the Intermountain Depository Corporation would be a trustee for participants’ bullion stored at Perpetual Storage Incorporated. BRNA never stated it would be a trustee of the funds it received from program participants. Moreover, even if an express trust were created, Bozek would still have a duty under federal bankruptcy law to trace his funds to the bullion he received. Such a tracing requirement is necessary to further the Bankruptcy Code’s policy of equal distribution among similarly situated creditors. See Elliott, 356 F.2d at 755 (state trust law must be applied in a manner consistent with federal bankruptcy policy). Here," }, { "docid": "12698016", "title": "", "text": "between 1981 and 1983, Bozek purchased bullion through BRNA. Like many program participants, Bozek asked BRNA to store his bullion. On August 22, 1983, forty-two days before BRNA filed for Chapter 11 relief, Bozek liquidated his member account and received bullion worth $212,138.60 from BRNA. Subsequently, on August 9, 1984, BRNA’s bankruptcy trustee brought this adversary action against Bozek under 11 U.S.C. § 547 (1982) to recover the bullion as a preferential transfer. The bankruptcy court granted summary judgment in favor of the trustee and the district court affirmed. We review the bankruptcy court’s grant of summary judgment de novo. See Nash v. Kester (In re Nash), 765 F.2d 1410, 1412 (9th Cir.1985). ANALYSIS A bankruptcy trustee may recover property for the benefit of the debtor’s estate if there (1) was a transfer; (2) of property of the debtor; (3) to or for the benefit of a creditor; (4) for or on account of an antecedent debt; (5) made while the debtor was insolvent; (6) made on or within ninety days before the date of the filing of the debtor’s bankruptcy petition; (7) that enables the creditor to receive more than he would receive if the transfer had not been made and the debtor’s estate liquidated according to the provisions of the bankruptcy code. 11 U.S.C. § 547(b) (1982). The burden of proving the existence of these elements is on the bankruptcy trustee. Grover v. Gulino (In re Gulino), 779 F.2d 546, 549 (9th Cir.1985). Bozek contends that the bankruptcy court erred by finding that (1) the bullion BRNA transferred to him was property of the debtor, (2) he was BRNA’s creditor, and (3) the transfer of bullion was on account of an antecedent debt. Bozek also contends that, if the transfer was a preference, it was excepted from avoidance under § 547(c)(1) and (2). 1. Property of the debtor Bozek argues that the bullion he received was not property of the debtor, BRNA, because it was purchased with money fraudulently obtained from member account program participants. In effect, he argues that he should be allowed to keep the bullion" }, { "docid": "12698020", "title": "", "text": "S.Ct. 67, 17 L.Ed.2d 66 (1966). State law determines whether a trust exists in federal bankruptcy proceedings. Toys “R” Us, Inc. v. Esgro, Inc. (Matter of Esgro, Inc.), 645 F.2d 794, 797 (9th Cir.1981). There is no indication that BRNA intended to assume the duties of a trustee. See Cal.Civ.Code § 2222 (West 1985) (repealed July 1,1987) (trust created as to trustee by conduct indicating his acceptance of trust). The member account program brochure specified that the Intermountain Depository Corporation would be a trustee for participants’ bullion stored at Perpetual Storage Incorporated. BRNA never stated it would be a trustee of the funds it received from program participants. Moreover, even if an express trust were created, Bozek would still have a duty under federal bankruptcy law to trace his funds to the bullion he received. Such a tracing requirement is necessary to further the Bankruptcy Code’s policy of equal distribution among similarly situated creditors. See Elliott, 356 F.2d at 755 (state trust law must be applied in a manner consistent with federal bankruptcy policy). Here, Bozek cannot trace the money he gave BRNA to the bullion he received. Therefore, the bullion is property of the debtor under § 547. 2. Creditor and Antecedent Debt Bozek contends he is not a creditor and that the transfer was not on account of an antecedent debt because BRNA did not owe him anything before making the bullion transfer. Bozek bases his argument on the idea that he never had a creditor’s claim against BRNA because bullion was transferred to him upon demand and he did not suffer economic injury. This argument ignores the Bankruptcy Code’s broad definitions. A “creditor” is defined as an “entity that has a claim against the debtor.” 11 U.S.C. § 101(9) (1982). “Claim” is defined as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” 11 U.S.C. § 101(4) (1982). The legislative history of the Bankruptcy Code indicates that Congress intended to provide the broadest possible definition of “claim” when it enacted" } ]

[ { "docid": "17303581", "title": "", "text": "(1973). The critical element in distinguishing a federal agency and an independent contractor is “the power of the Federal government to control the detailed physical performance of the contractor.” United States v. Orleans, supra, 425 U.S. at 814, 96 S.Ct. at 1976. Here, ERDA awarded GE the contract to operate the Knolls Atomic Power Laboratory. In that contract ERDA delegated to GE, pursuant to 42 U.S.C. § 2051, the responsibility to take reasonable safety precautions in the performance of the work under the contract. The primary safety responsibility, therefore, was properly delegated by the Government to GE, its independent contractor. See Crowther v. Seaborg, 312 F.Supp. 1205, 1220 (D. Colo. 1970). It is well settled that the contractual reser vation of the right to stop work, as is the case here, does not in itself create a duty in the Government. Alexander v. United States, 605 F.2d 828 (5th Cir. 1979); Fisher v. United States, 441 F.2d 1288 (3rd Cir. 1971); Jennings v. United States, 530 F.Supp. 40 (D.D.C. 1981). In other words, the mere fact that ERDA retained the right to stop work on the project for GE’s failure to comply with the safety regulations is not enough to change GE’s status as an independent contractor to that of an agent of the United States for purposes of the Federal Tort Claims Act. Indeed, it is clear that the day to day responsibility for supervision of the worksite was not retained by ERDA. Therefore, to hold the United States liable for the purported negligence of a contractor here would violate the proscription, first enunciated in Dalehite, against imposing accountability based on strict liability. Furthermore, where the imposition of a non-delegable duty under state law would amount to imposition of absolute or strict liability, as is the case with New York Labor Law §§ 240 and 241, see, e.g., Rea v. Albert Elia Bldg. Co., Inc., 79 A.D.2d 1102, 435 N.Y.S.2d 849 (4th Dep’t 1981), the United States cannot be held liable under the FTCA for a claim arising under such a state law. Laird v. Nelms, 406 U.S. 797," } ]

[ { "docid": "21578408", "title": "", "text": "the government can administratively immunize itself from tort liability under applicable state law as a matter of ‘policy,’ ” but, as in this case, found it unnecessary to reach that question. Id. Although the agency’s contract with the independent contractor contained a general provision requiring the contractor to take reasonable precautions to protect the health and safety of employees, as does the Roebbelen contract, it also reserved the agency’s right to inspect the contractor’s activities, and authorized the agency to stop any or all work. These retention provisions were much less extensive than those in the Roebbelen contract. Nonetheless, we held the agency “did not disassociate itself from all matters of safety or disclaim any function or concern in that respect.” Id. On the contrary, “[a]s a matter of policy, then, the [agency] chose to retain some responsibility over matters of employee safety.” Id. We concluded that the failure of government employees to fulfill this retained responsibility for securing compliance with safety rules, which required that notice be given of the scheduling of work near overhead power lines, was not within the discretionary function exception. The McGarry opinion described the negligence as having occurred “at the operational rather than the planning level.” Id. In the present case the district court held McGarry was no longer binding, apparently because of this “operational/planning” language, in light of the Supreme Court’s subsequent decision in Varig. The district court said: “Plaintiff relies on the pre-Var-ig approach of determining whether the decision was made at the planning level or operational level. The Ninth Circuit has held that in light of Varig this criterion is no longer valid. See In Re Consolidated United States Atmospheric Testing Litigation, [820 F.2d 982 (9th Cir.1987)].” We think McGarry was and is consistent with Supreme Court rulings and remains binding upon the district court and this panel. McGarry employed the “operational/planning” formulation as a “shorthand” reference to the limitation of the section 2680(a) exception to policy judgments — a limitation reflected not only in Varig, but also in cases which preceded Varig, such as Dalehite v. United States, 346 U.S." }, { "docid": "9860091", "title": "", "text": "to its discretion. Indeed, our own review of the Atomic Energy Act indicates that Congress ' granted the AEC a wide scope of discretion in the administration of the Atomic Energy Act’s provisions. See 42 U.S.C. § 2035(c) (creating an Inspection Division “to gather information” to determine whether contractors are complying with the Atomic Energy Act). Moreover, we agree with the district court that the discretionary function exception clearly precludes Merklin’s good Samaritan theory because the theory attempts to hold the AEC liable in its capacity as a regulator. “When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind.” Varig Airlines, 104 S.Ct. at 2768. See Begay v. United States, 768 F.2d 1059, 1064 (9th Cir.1985) (government inspection of uranium mines covered by the discretionary function exception). Merklin urges us to follow McMichael v. United States, 751 F.2d 303 (8th Cir.1985), where the Eighth Circuit held that the dis cretionary function exception did not prohibit a claim based on the allegedly negligent inspection of a munitions plant by Defense Department officials. We do not believe that McMichael applies here. The McMichael court found that government regulations and provisions of the contract between the manufacturer and the government obligated several full-time inspectors to perform a large number of precise and highly technical inspections involving no policy judgment. Cf. Griffin v. United States, 500 F.2d 1059 (3d Cir.1974) (discretionary function exception inapplicable to the approval of a batch of vaccine where such approval was based on scientific, not policy, judgment). We believe that McMi-chael must be read narrowly to apply only to those situations where no policy judgment is implicated. We find the instant case differs distinctly from McMichael in that the AEC’s discretion in conducting plant inspections appears unbounded. Accordingly, we hold that the discretionary function exception bars Merklin’s good Samaritan claim. IV. Merklin also argues that the United States may be found liable as the employer of Grace for Grace’s negligence in permitting the processing plant to become contaminated with' radioactive material." }, { "docid": "17329177", "title": "", "text": "Appeals has framed this issue in its opinion in this case, the only remaining question is whether the defendants’ challenged conduct is a discretionary act. The Eleventh Circuit recently has restated the viewpoint expressed in Smith v. United States, 375 F.2d 243, 246 (5th Cir.), cert. denied, 389 U.S. 841 [88 S.Ct. 76, 19 L.Ed.2d 106] (1967), that discretionary acts may not be determined by a rigid distinction between planning and operational activities. Alabama Electrical Cooperative v. United States, 769 F.2d 1523, 1527 n. 1 (11th Cir.1985). The court also recognized the Smith rationale that the essence of the governmental immunity question is the nature and quality of the discretion involved in the conduct under scrutiny. Id. Applying that analysis to the facts before the Court, it is apparent that the TVA defendants are entitled to such immunity. In Feyers v. United States, 749 F.2d 1222 (6th Cir.1984), the employee of an independent contractor was injured in an operation supervised by the contractor. The employee sued the Government for its alleged negligent inspection of the contractor’s operation of the facility and its breach of a nondelegable duty to provide a safe work area. The Sixth Circuit affirmed dismissal of the complaint, holding that the Government’s decision to delegate safety responsibility to the contractor was clearly a discretionary function giving rise to governmental immuni ty. 749 F.2d at 1227. In Maltais v. United States, 546 F.Supp. 96 (N.D.N.Y.1982), aff'd, 729 F.2d 1442 (2d Cir.1983), a contractor’s employee was killed in a construction accident. The court dismissed a wrongful death claim against the Government, holding that a governmental agency’s delegation of safety responsibility was a discretionary act and therefore gives rise to an exemption from Federal Tort Claims Act liability. 546 F.Supp. at 101. The Maltais court further held that a governmental agency “ ‘may have considerable power to control the activities of private companies through contracts, but when [it] decides the extent to which it will undertake to supervise the safety procedures of private contractors, it is exercising discretion at one of the highest levels.’ ” Id. (citations omitted). Other cases" }, { "docid": "10003900", "title": "", "text": "study was involved in Begay. The Indians alleged the government was actionably negligent (1) in leaving uranium mine safety outside the Indian reservation to the states, (2) in failing to enforce radiation safety levels in reservation mines, (3) in failing to warn miners of possible radiation injury, and (4) in failing to establish and enforce radiation safety standards in uranium mines. The district court and court of appeals ruled that the government was shielded from tort liability by the discretionary function exception. . 28 U.S.C. § 2680(a) provides that the Tort Claims Act’s waiver of immunity shall not apply to [ajny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved is abused. (Emphasis added.) . The district court in this case relied on the Supreme Court's explanation of the discretionary function exception in Varig. On appeal, appellants assert that Varig is inapplicable to this case because Varig involved \"regulatory responsibilities” which are not present in this case. Nothing in 28 U.S.C. § 2680(a) or in the law developed by the federal court limits the application of the discretionary function exception to regulatory activities. Varig, 467 U.S. at 809-10, 104 S.Ct. at 2762-63; Dalehite, 346 U.S. at 38, 73 S.Ct. at 969; Begay v. United States, 768 F.2d 1059, 1063-64 (9th Cir.1985). The analysis of the discretionary function exception contained in Dalehite and Varig is applicable to this case. . The statute defines the words \"produce\" and “production facility” as follows: (u) The term \"produce” when used in relation to special nuclear material, means (1) to man ufacture, make, produce, or refine special nuclear material; (2) to separate special nuclear material from other substances in which such material may be contained; or (3) to make or to produce new" }, { "docid": "17329178", "title": "", "text": "contractor’s operation of the facility and its breach of a nondelegable duty to provide a safe work area. The Sixth Circuit affirmed dismissal of the complaint, holding that the Government’s decision to delegate safety responsibility to the contractor was clearly a discretionary function giving rise to governmental immuni ty. 749 F.2d at 1227. In Maltais v. United States, 546 F.Supp. 96 (N.D.N.Y.1982), aff'd, 729 F.2d 1442 (2d Cir.1983), a contractor’s employee was killed in a construction accident. The court dismissed a wrongful death claim against the Government, holding that a governmental agency’s delegation of safety responsibility was a discretionary act and therefore gives rise to an exemption from Federal Tort Claims Act liability. 546 F.Supp. at 101. The Maltais court further held that a governmental agency “ ‘may have considerable power to control the activities of private companies through contracts, but when [it] decides the extent to which it will undertake to supervise the safety procedures of private contractors, it is exercising discretion at one of the highest levels.’ ” Id. (citations omitted). Other cases reiterate the sentiment expressed in Feyers and Maltais, that safety decisions represent an exercise of discretion giving rise to governmental immunity. See, e.g., Ford v. American Motors Corp., 770 F.2d 465, 467 (5th Cir.1985) (evaluation of hazards and subsequent safeguards are protected discretionary acts); Hylin v. United States, 755 F.2d 551 (7th Cir.1985) (Federal Mine inspectors’ duty to enforce safety standards held discretionary); Chrisley v. United States, 620 F.Supp. 285, 290 (D.S.C.1985) (restriction of certain areas and decision to post warning signs held discretionary). The rationale of these cases is persuasive and appropriate to resolve the TVA defendants’ claim of governmental immunity. “When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), [467] U.S. [797], 104 S.Ct. 2755 [81 L.Ed.2d 660] (1984). The TVA defendants are therefore immune from the plaintiffs’ claims. Johns v. Pettibone Corp., No. CV82-L-5630-NE (N.D.Ala. March 25, 1986). II. Delegation It" }, { "docid": "1026343", "title": "", "text": "1065 (6th Cir.1981) (“... [T]he discretionary function exception also bars that portion of the claim based on the decision of the FAA to delegate inspection duties to an inspection department of the manufacturer”). See Natural Gas Pipeline Co. v. United States, 742 F.2d 502 (9th Cir.1984); Madison v. United States, 679 F.2d 736, 738-39 (8th Cir.1982) (awarding of government contract to contractor and promulgation of safety manual are discretionary functions); Blaber v. United States, 332 F.2d 629, 631 (2d Cir.1964) (delegation of safety responsibility to independent contractor is discretionary function); Maltais v. United States, 546 F.Supp. 96, 101 (N.D.N.Y.1982), aff'd, 729 F.2d 1442 (2d Cir.1983) (government decision to delegate safety responsibility to contractor is a discretionary function despite government’s retention of the right to inspect and stop work). The United States’ decisions to delegate safety responsibility to Chrysler, to conduct only “spot checks” of Chrysler’s safety programs, and to not institute a safety training program for railyard workers are clearly the type of discretionary functions protected by 28 U.S.C. § 2680(a). The evidence established that the United States’ safety office was primarily responsible for the safety of government employees, that access to the plant by government inspectors to make “spot checks” was limited by the need for Chrysler security clearance, and that the United States’ safety staff could not order Chrysler to change its safety practices. The government’s safety director testified that safety decisions regarding specific areas of the plant were based on accident rates in those areas. The decision to rely on the “spot checks” or annual review along with accident rates to establish safety priorities is, in essence, a policy decision, involving the exercise of discretion. Although Chrysler was required to comply with the AMC Safety Manual AMC 385-100, that manual did not describe railroad safety procedures. Further, the decision to delegate responsibility for safety to Chrysler was based on a perception by government negotiators that Chrysler was a prudent contractor capable of implementing its own safety program. These facts establish that the acts cited in appellees’ complaint constitute discretionary functions over which the district court lacked jurisdiction." }, { "docid": "395850", "title": "", "text": "are similar to those discussed in Varig Airlines. In Varig Airlines, the Civil Aeronautics Agency allegedly negligently inspected and certified an aircraft that did not meet minimum fire safety standards. 104 S.Ct. at 2758. The Supreme Court found that a negligent failure to inspect falls within the discretionary function exception. Varig Airlines, 104 S.Ct. at 2768. The Court emphasized that the manufacturer has “the duty to ensure that an aircraft conforms to FAA safety regulations ... while the FAA retains the responsibility for policing compliance.” Id. at 2768. The same is true for companies operating under the directives of OSHA. The employer has the statutory responsibility for maintaining a safe workplace. 29 U.S.C. § 654(a). This court, in Natural Gas Pipeline Co. v. United States, 742 F.2d 502, 504-05 (9th Cir.1984) found that FAA’s alleged failure to discover aircraft defects and to adequately monitor aircraft safety was protected by the discretionary function exception. The same is true in this case for OSHA’s alleged failure to adequately monitor the Stauffer Plant. Both OSHA’s decision to review the employer’s compliance with safety standards and its actual inspections of the Stauffer Plant are discretionary functions. Congress has left to OSHA’s discretion the establishment of safety standards and the enforcement of those standards. “When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind.” Varig Airlines, 104 S.Ct. at 2768. See also Be-gay, 768 F.2d at 1064 (decision whether to implement safety regulations in uranium mines is within Varig’s coverage). The acts of OSHA inspectors in executing agency directives are protected by the discretionary function exception. See Varig Airlines, 104 S.Ct. at 2768; Dalehite, 346 U.S. at 36 (“acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable”); see also Begay, 768 F.2d at 1064. AFFIRMED." }, { "docid": "395849", "title": "", "text": "be abused.” 28 U.S.C. § 2680(a). See Dalehite v. United States, 346 U.S. 15, 33, 73 S.Ct. 956, 966, 97 L.Ed. 1427 (1953). The nature of the conduct involved governs whether the so-called discretionary function exception applies. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (“Varig Airlines\"), 467 U.S. 797, 104 S.Ct. 2755, 2764-65, 81 L.Ed.2d 660 (1984). “[T]he basic inquiry ... is whether the challenged acts of a government employee — whatever his or her rank — are of the nature and quality that Congress intended to shield from tort liabil ity.” Id. The purpose of the exception is to prevent judicial second-guessing of administrative decisionmaking based on social, economic, and political policy. Id. 104 S.Ct. at 2765. “ ‘[I]f judicial review would encroach upon this type of balancing done by an agency, then the exception would apply.’ ” Chamberlin v. Isen, 779 F.2d 522, 523 (9th Cir.1985) (quoting Begay v. United States, 768 F.2d 1059, 1064 (9th Cir.1985)). Georgia Cunningham claims OSHA was negligent in conducting its inspections. OSHA safety inspections are similar to those discussed in Varig Airlines. In Varig Airlines, the Civil Aeronautics Agency allegedly negligently inspected and certified an aircraft that did not meet minimum fire safety standards. 104 S.Ct. at 2758. The Supreme Court found that a negligent failure to inspect falls within the discretionary function exception. Varig Airlines, 104 S.Ct. at 2768. The Court emphasized that the manufacturer has “the duty to ensure that an aircraft conforms to FAA safety regulations ... while the FAA retains the responsibility for policing compliance.” Id. at 2768. The same is true for companies operating under the directives of OSHA. The employer has the statutory responsibility for maintaining a safe workplace. 29 U.S.C. § 654(a). This court, in Natural Gas Pipeline Co. v. United States, 742 F.2d 502, 504-05 (9th Cir.1984) found that FAA’s alleged failure to discover aircraft defects and to adequately monitor aircraft safety was protected by the discretionary function exception. The same is true in this case for OSHA’s alleged failure to adequately monitor the Stauffer Plant. Both OSHA’s decision to review" }, { "docid": "21578407", "title": "", "text": "in principle from McGarry v. United States, 549 F.2d 587 (9th Cir.1976), and more favorable to plaintiffs on the facts. In McGarry the United States was sued under the FTCA for the death of an employee of an independent contractor. The employee was electrocuted when he touched a drilling rig in contact with a power line. The suit challenged the negligent failure to give notice, as required by the agency’s safety rules, that work was to be performed adjacent to overhead lines so the lines could be deactivated. Id. at 590. The suit was based on California’s “peculiar risk” doctrine as applied in Thorne v. United States, 479 F.2d 804, 808-10 (9th Cir.1973). The United States contended it had delegated to the contractor “all responsibility for safety precautions, retaining no duties whatsoever; that this was done as a matter of policy, and, under the discretionary function exception, is not subject to judicial review or to being set aside by local law.” McGarry, 549 F.2d at 591 (original emphasis). We rejected the argument. We “questioned whether the government can administratively immunize itself from tort liability under applicable state law as a matter of ‘policy,’ ” but, as in this case, found it unnecessary to reach that question. Id. Although the agency’s contract with the independent contractor contained a general provision requiring the contractor to take reasonable precautions to protect the health and safety of employees, as does the Roebbelen contract, it also reserved the agency’s right to inspect the contractor’s activities, and authorized the agency to stop any or all work. These retention provisions were much less extensive than those in the Roebbelen contract. Nonetheless, we held the agency “did not disassociate itself from all matters of safety or disclaim any function or concern in that respect.” Id. On the contrary, “[a]s a matter of policy, then, the [agency] chose to retain some responsibility over matters of employee safety.” Id. We concluded that the failure of government employees to fulfill this retained responsibility for securing compliance with safety rules, which required that notice be given of the scheduling of work near" }, { "docid": "9860090", "title": "", "text": "function exception. We agree. In Varig Airlines, the Supreme Court identified two guidelines for determining whether governmental action is discretionary for the purposes of the FTCA. First, we must ascertain whether “the challenged acts of a Government employee — whatever his or her rank — are of the nature and quality that Congress intended to shield from tort liability.” Varig Airlines, 104 S.Ct. at 2765. On this point, we must be mindful that Congress designed the exception to preclude the application of the Act to agency decisions involving policy judgments. Id. at 2764. Second, the Court observed that the discretionary function exception plainly applies to “the discretionary acts of the Government acting in its role as a regulator of the conduct of individuals.” Id. at 2765. See generally General Public Utilities Corp. v. United States, 745 F.2d 239, 242-46 (3d Cir.1984), cert. denied,U.S. -, 105 S.Ct. 1227, 84 L.Ed.2d 365 (1985). Merklin has not referred us to any authority suggesting that the AEC’s decisions about the method and manner of plant inspections are not committed to its discretion. Indeed, our own review of the Atomic Energy Act indicates that Congress ' granted the AEC a wide scope of discretion in the administration of the Atomic Energy Act’s provisions. See 42 U.S.C. § 2035(c) (creating an Inspection Division “to gather information” to determine whether contractors are complying with the Atomic Energy Act). Moreover, we agree with the district court that the discretionary function exception clearly precludes Merklin’s good Samaritan theory because the theory attempts to hold the AEC liable in its capacity as a regulator. “When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind.” Varig Airlines, 104 S.Ct. at 2768. See Begay v. United States, 768 F.2d 1059, 1064 (9th Cir.1985) (government inspection of uranium mines covered by the discretionary function exception). Merklin urges us to follow McMichael v. United States, 751 F.2d 303 (8th Cir.1985), where the Eighth Circuit held that the dis cretionary function exception did not prohibit a claim" }, { "docid": "23647837", "title": "", "text": "-, 104 S.Ct. at 2765, 81 L.Ed.2d at 674. This consideration applies to “all employees exercising discretion.” Dalehite, 346 U.S. at 33, 73 S.Ct. at 966. Second, “Congress wished to prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Therefore, if judicial review would encroach upon this type of balancing done by an agency, then the exception would apply. Varig, — U.S. at -, -, 104 S.Ct. at 2764, 2768, 81 L.Ed.2d at 674, 678. The question whether review is appropriate at this stage involves certain considerations of the separation of powers. Allen v. United States, 527 F.Supp. 476, 483, 485 (D.Utah 1981) (“[0]ne must understand that the words ‘discretionary function’ as used in the Tort Claims Act, are really the correlative, the other side of the coin, of the exercise of executive power.”). See generally Note, The Discretionary Function Exception: Is it a Bar to Federal Jurisdiction?, 1983 Utah L.Rev. 177. See also Allen, supra. As Varig points out, the exception applies when the agency makes a decision that is grounded in social, economic, and political policy. This is the very reason that the exception was passed. Congress wanted to prevent the courts from deciding in tort actions the policy and regulatory types of decisions that have been delegated to the agencies. A. Nature of the Conduct Some of the agencies involved in this case did have some type of authority to regulate activity in the mines. These agencies, the Department of Labor (under the Public Contracts Act), the Department of Interior (regulations on Indian or public lands), the BOM, the USGS (both working under Interior), the Arizona Mine Inspector, and the Navajo Mine Inspector, chose to either implement safety regulations in the uranium mines, or not to. These decisions are clearly within the ambit of the Supreme Court’s decision in Varig covering regulatory agencies. “When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind.” Varig, —" }, { "docid": "1026342", "title": "", "text": "and to conduct “spot check” monitoring were discretionary decisions. When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind. Decisions as to the manner of enforcing regulations directly affect the feasibility and practicality of the Government’s regulatory program; such decisions require the agency to establish priorities for the accomplishment of its policy objectives by balancing the objectives sought to be obtained against such practical considerations as staffing and funding. Here the FAA has determined that a program of “spot-checking” manufacturers’ compliance with minimum safety standards best accommodates the goal of air transportation safety and the reality of finite agency resources. Judicial intervention in such decisionmaking through private tort suits would require the courts to “second-guess” the political, social and economic judgments of an agency exercising its regulatory function. It was precisely this sort of judicial intervention in policy-making that the discretionary function exception was designed to prevent. Id. at 2768. Garbarino v. United States, 666 F.2d 1061, 1065 (6th Cir.1981) (“... [T]he discretionary function exception also bars that portion of the claim based on the decision of the FAA to delegate inspection duties to an inspection department of the manufacturer”). See Natural Gas Pipeline Co. v. United States, 742 F.2d 502 (9th Cir.1984); Madison v. United States, 679 F.2d 736, 738-39 (8th Cir.1982) (awarding of government contract to contractor and promulgation of safety manual are discretionary functions); Blaber v. United States, 332 F.2d 629, 631 (2d Cir.1964) (delegation of safety responsibility to independent contractor is discretionary function); Maltais v. United States, 546 F.Supp. 96, 101 (N.D.N.Y.1982), aff'd, 729 F.2d 1442 (2d Cir.1983) (government decision to delegate safety responsibility to contractor is a discretionary function despite government’s retention of the right to inspect and stop work). The United States’ decisions to delegate safety responsibility to Chrysler, to conduct only “spot checks” of Chrysler’s safety programs, and to not institute a safety training program for railyard workers are clearly the type of discretionary functions protected by 28 U.S.C. § 2680(a). The evidence established that" }, { "docid": "10001781", "title": "", "text": "788 F.2d 172, 174-75 (3d Cir.1986) (no liability for AEC inspectors’ failure to warn uranium processing plant employees of health hazards discovered during AEC inspections); Ostera v. United States, 769 F.2d 716, 718 (11th Cir.1985) (no liability for FBI decision to obtain release of particular person from prison to use as informant); Begay v. United States, 768 F.2d 1059, 1066 (9th Cir.1985) (no liability for U.S. Public Health Service failure to warn uranium miners of radiation hazards); Cisco v. United States, 768 F.2d 788, 789-90 (7th Cir.1985) (no liability for EPA failure to warn residents of landfill dirt contaminated with dioxin); Baxley v. United States, 767 F.2d 1095, 1097-98 (4th Cir.1985) (no liability for FAA failure to regulate \"ultralight” aircraft); Shuman v. United States, 765 F.2d 283, 291 (1st Cir.1985) (no liability for Navy failure to warn shipyard workers of asbestos hazards); Hylin v. United States, 755 F.2d 551, 554 (7th Cir.1985) (no liability for federal mine inspectors’ failure to fully inspect clay mine); Feyers v. United States, 749 F.2d 1222, 1227 (6th Cir.1984) (no liability for Army’s failure to inspect Chrysler’s operation of government-owned railyard), cert. denied, 471 U.S. 1125, 105 S.Ct. 2655, 86 L.Ed.2d 272 (1985); General Public Utilities Corp. v: United States, 745 F.2d 239, 247 (3d Cir.1984) (no liability for Nuclear Regulatory Commission’s failure to warn of possible equipment defects at the Three Mile Island nuclear facility), cert. denied, 469 U.S. 1228, 105 S.Ct. 1227, 84 L.Ed.2d 365 (1985); Flammia v. United States, 739 F.2d 202, 204 (5th Cir.1984) (no liability for INS’s \"specific operational decision” to permit a Cuban refugee known to be a convicted felon to enter the United States). But see Aslakson v. United States, 790 F.2d 688, 691-94 (8th Cir.1986) (FTCA liability possible for government agency’s failure to comply with its own already established safety policy); Henderson v. United States, 784 F.2d 942, 943 n. 2 (9th Cir.1986) (FTCA liability possible, for government missile facility safety decision not made “at the planning stage,\" but \"operational in nature\"); Collins v. United States, 783 F.2d 1225, 1228-31 (5th Cir.1986) (FTCA liability possible, for failure" }, { "docid": "10001780", "title": "", "text": "exempt); Olson v. United States, 93 F.Supp. 150, 152-53 (D.N.D.1950) (suit for property damage caused by questionable discretionary decision of government employees to release flood waters from dam; court holds that § 2680(a) bars recovery). . We have previously followed the command of the Supreme Court in Vang. See Russell v. United States, 763 F.2d 786, 787 (10th Cir.1985) (no government FTCA liability possible, for failure of federal mine inspectors to more fully inspect Utah coal mine). Most of the post- Vang decisions of the other circuits are in accord with our holding today. See, e.g., Myslakowski v. United States, 806 F.2d 94, 97-99 (6th Cir.1986) (no liability for Postal Service decision to sell used jeeps, without warning buyers of jeep propensity to tip over), cert. denied, — U.S. -, 107 S.Ct. 1608, 94 L.Ed.2d 793 (1987); Ford v. American Motors Corp., 770 F.2d 465, 466-68 (5th Cir.1985) (same); Smith v. Johns-Manville Corp., 795 F.2d 301, 306-09 (3d Cir.1986) (no liability for GSA decision to sell asbestos without warning of hazards); Merklin v. United States, 788 F.2d 172, 174-75 (3d Cir.1986) (no liability for AEC inspectors’ failure to warn uranium processing plant employees of health hazards discovered during AEC inspections); Ostera v. United States, 769 F.2d 716, 718 (11th Cir.1985) (no liability for FBI decision to obtain release of particular person from prison to use as informant); Begay v. United States, 768 F.2d 1059, 1066 (9th Cir.1985) (no liability for U.S. Public Health Service failure to warn uranium miners of radiation hazards); Cisco v. United States, 768 F.2d 788, 789-90 (7th Cir.1985) (no liability for EPA failure to warn residents of landfill dirt contaminated with dioxin); Baxley v. United States, 767 F.2d 1095, 1097-98 (4th Cir.1985) (no liability for FAA failure to regulate \"ultralight” aircraft); Shuman v. United States, 765 F.2d 283, 291 (1st Cir.1985) (no liability for Navy failure to warn shipyard workers of asbestos hazards); Hylin v. United States, 755 F.2d 551, 554 (7th Cir.1985) (no liability for federal mine inspectors’ failure to fully inspect clay mine); Feyers v. United States, 749 F.2d 1222, 1227 (6th Cir.1984) (no" }, { "docid": "769175", "title": "", "text": "enter the institution ... at reasonable hours for the purpose of inspecting the same and determining the conditions under which federal offenders are housed.” Id. at 530, 93 S.Ct. at 2220. The Supreme Court held that the contract gave the Government “no authority to physically supervise the conduct of the jail’s employees” and “clearly contemplated that the day-to-day operations of the contractor’s facilities were to be in the hands of the contractor.” Id. at 529-30, 93 S.Ct. at 2220. See United States v. Orleans, 425 U.S. at 815, 96 S.Ct. at 1976. Similarly, the broad responsibilities assumed by GHC under the United States-GHC construction contract make clear that the Government had no right to supervise the detailed physical performance of GHC’s construction in the National Visitor Center. Moreover, many courts have permitted the Government to exercise greater supervisory powers over the contractor than in the instant case without altering the contractor’s legal status from an independent contractor to an agent or servant. For example, in Alexander v. United States, 605 F.2d 828 (5th Cir. 1979), the Fifth Circuit rejected plaintiff’s claim that the authority the Government exercised under its safety program at an ammunition plant constituted day-to-day supervision of its contractor. Id. at 834. Rather, the court reasoned that the Government’s supervision was “only a means of monitoring compliance with the contract and with government safety regulations.” Id. In addition, the Tenth Circuit has reasoned that “[t]he fact that the contract may have reserved to the United States the right to inspect the work and facilities of the independent contractor, and the right to stop the work, does not in itself override or alter the general rule of nonliability for the torts of the contractor.” United States v. Page, 350 F.2d 28, 31 (10th Cir. 1965), cert. denied, 382 U.S. 979, 86 S.Ct. 552, 15 L.Ed.2d 470 (1966). Because the Government usually receives a right of general supervision in contracts with private parties in order to ensure that the contract obligations are being met, see Harris v. Pettibone Corp., 488 F.Supp. 1129, 1135 (D.Tenn.1980); Kropp v. Douglas Aircraft Co., 329" }, { "docid": "10003899", "title": "", "text": "(v). Nowhere in the Act are the terms “produce” or “pro duction” used in the mining context. Those terms are used only in conjunction with post-extraction aspects of the nuclear power industry. Furthermore, the use of the terms “production activities” in the context of § 2051 does not reveal a Congressional intention to regulate uranium mine safety. We note that the other subsections in § 2051 concern post-extraction matters. Summary judgment, therefore, was proper. III. In summary, we conclude that the district court properly granted summary judgment because there are no issues of material fact, the discretionary function exception applies to the negligence claims, and 42 U.S.C. § 2051 does not impose a mandatory duty on the AEC to establish regulations concerning uranium mining safety. The district court’s grant of summary judgment is affirmed. AFFIRMED. . This case is very similar to Begay v. United States, 591 F.Supp. 991 (D.Ariz.1984), aff'd, 768 F.2d 1059 (9th Cir.1985). Indians who formerly worked in underground uranium mines brought suit under the Federal Tort Claims Act. The same PHS study was involved in Begay. The Indians alleged the government was actionably negligent (1) in leaving uranium mine safety outside the Indian reservation to the states, (2) in failing to enforce radiation safety levels in reservation mines, (3) in failing to warn miners of possible radiation injury, and (4) in failing to establish and enforce radiation safety standards in uranium mines. The district court and court of appeals ruled that the government was shielded from tort liability by the discretionary function exception. . 28 U.S.C. § 2680(a) provides that the Tort Claims Act’s waiver of immunity shall not apply to [ajny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved is abused. (Emphasis" }, { "docid": "13412074", "title": "", "text": "is whether the challenged acts of a Government employee— whatever his or her rank — are of the nature and quality that Congress intended to shield from tort liability. Id. at 813, 104 S.Ct. at 2764. In Varig the Court held that the FAA’s decision to spot check airline compliance with safety regulations was a protected discretionary decision. The Court described the FAA’s decision as a determination that “a program of ‘spot-checking’ manufacturers’ compliance with minimum safety standards best accommodate[d] the goal of air transportation safety and the reality of finite agency resources.” This, the Court explained, was “plainly discretionary activity of the ‘nature and quality’ protected by section 2680(a).” Id. at 819-20, 104 S.Ct. at 2767. The Court went on to hold that the FAA system allowed decisions that certain items need not be checked, and that those decisions were also discretionary functions. The Court used language which some courts, including our own, may have misinterpreted as extending the discretionary function exception beyond policy choices to negligent failures to follow known safety standards. The Court stated that “the FAA’s alleged negligence in failing to check certain specific items in the course of certificating a particular aircraft falls squarely within the discretionary function exception.” Id. at 820, 104 S.Ct. at 2768. This language has created confusion concerning what negligent conduct by federal officials will subject the United States to liability. If taken literally, as the government appears to take it, such language implies that policy decisions and all conduct carrying out policy decisions are protected by discretionary function immunity, even if government employees are negligent in the course of implementing a policy decision. As a result, the discretionary function exception at times has threatened to swallow the FTCA’s general waiver of immunity. For example, in Begay v. United States, 768 F.2d 1059 (9th Cir.1985), cert. denied, — U.S. -, 108 S.Ct. 1110, 99 L.Ed.2d 271 (1988), we said that Varig abrogated distinctions between government acts at the planning level as opposed to the “operational” level and left all acts implementing a policy decision protected. Id. at 1062 n. 2. See" }, { "docid": "17329179", "title": "", "text": "reiterate the sentiment expressed in Feyers and Maltais, that safety decisions represent an exercise of discretion giving rise to governmental immunity. See, e.g., Ford v. American Motors Corp., 770 F.2d 465, 467 (5th Cir.1985) (evaluation of hazards and subsequent safeguards are protected discretionary acts); Hylin v. United States, 755 F.2d 551 (7th Cir.1985) (Federal Mine inspectors’ duty to enforce safety standards held discretionary); Chrisley v. United States, 620 F.Supp. 285, 290 (D.S.C.1985) (restriction of certain areas and decision to post warning signs held discretionary). The rationale of these cases is persuasive and appropriate to resolve the TVA defendants’ claim of governmental immunity. “When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), [467] U.S. [797], 104 S.Ct. 2755 [81 L.Ed.2d 660] (1984). The TVA defendants are therefore immune from the plaintiffs’ claims. Johns v. Pettibone Corp., No. CV82-L-5630-NE (N.D.Ala. March 25, 1986). II. Delegation It has long been recognized that an employer may delegate the duty of providing a safe workplace to an independent contractor. See Restatement (Second) of Torts § 413 (duty to provide for taking of precautions against dangers involved in work entrusted to independent contractors). Certainly when TVA, the employer of defendants, delegated its duty to the independent contractor, defendant employees of TVA could not be liable for the breach of a duty which TVA itself had delegated to others. The construction contract here incorporated TVA’s Hazard Control Standards and required compliance with OSHA regulations. Under this contract, CE agreed “to insure that the foregoing provisions [were] being complied with at all times.” Under both the Hazard Control Standards and the OSHA regulations, individuals were required to maintain, at minimum, a ten-foot distance between overhead power lines and all machinery unless such lines were deen-ergized and visibly grounded. See, e.g., 29 C.F.R. § 1926.550. Plaintiffs do not contest the validity of the construction contract or the applicable safety standards and regulations. Instead, plaintiffs argue that at the" }, { "docid": "20017562", "title": "", "text": "moreover, this claimed basis of liability would be defeated by the discretionary function exception. Case law makes clear that failing to warn of known dangers is often permissibly within the government’s discretion. In Begay v. United, States, 768 F.2d 1059 (9th Cir.1985), the court found that the decision of the U.S. Health Service not to disclose to miners the possible health hazards of working in uranium mines was protected by the discretionary function exception. Here, the wartime decision to secure housing by intentionally electing not to disclose the possible dangers of lampblack would, under the authority of Be-gay, constitute a protected decision. See 768 F.2d at 1065. See also Layton v. United States, 984 F.2d 1496, 1502-03 (8th Cir.1993) (decision of the Forest Service not to warn a contractor of dangers in cutting trees in national forest protected under the exception). For these reasons, then, summary judgment is appropriately granted in favor of the government on the basis that its challenged acts and omissions were either unsubstantiated by sufficient evidentiary support or were within the permissible scope of its discretion. 2. The Independent Contractor Exception For the separate and independent reason that the challenged activity was performed by an independent contractor, this Court is divested of jurisdiction to adjudicate much of plaintiffs’ claims. Under the FTCA, the United .States is subject to liability for damages “caused by the negligent or wrongful act or omission of any employee of the Government_” 28 U.S.C. § 1346(b). However, the FTCA “adopts the common-law distinction between the liability of an employer for the negligent acts of his own employees and his liability for the employees of a party with whom he contracts for a specified performance.” United States v. Orleans, 425 U.S. 807, 814-15, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976). Thus, under the FTCA, the United States cannot be found liable for the negligence of an independent contractor unless it can be shown that the United States controlled the day-to-day activities of the contractor. Moreover, “[tjhere must be substantial supervision over the day-to-day operations of the contractor in order to find that" }, { "docid": "23647838", "title": "", "text": "exception applies when the agency makes a decision that is grounded in social, economic, and political policy. This is the very reason that the exception was passed. Congress wanted to prevent the courts from deciding in tort actions the policy and regulatory types of decisions that have been delegated to the agencies. A. Nature of the Conduct Some of the agencies involved in this case did have some type of authority to regulate activity in the mines. These agencies, the Department of Labor (under the Public Contracts Act), the Department of Interior (regulations on Indian or public lands), the BOM, the USGS (both working under Interior), the Arizona Mine Inspector, and the Navajo Mine Inspector, chose to either implement safety regulations in the uranium mines, or not to. These decisions are clearly within the ambit of the Supreme Court’s decision in Varig covering regulatory agencies. “When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind.” Varig, — U.S. at-, 104 S.Ct. at 2768, 81 L.Ed.2d at 678. Our inquiry proceeds to the decision of the Public Health Service, acting under the Surgeon General, not to disclose to the miners the possible health hazards involved in working in the uranium mines. At the time, in order to get the cooperation of the owners of the various mines and to retain the members of the cohort for study, PHS decided not to warn the miners of the possible radiation hazards associated with uranium mining. Begay, 591 F.Supp. at 995. The decision not to warn the Navajo miners was apparently made by Holaday, who at the time of the investigation was the Chief of PHS’s Western Area Field Station in charge of research in 15 states. Holaday was also in charge of the environmental stage of the study of uranium miners involved here. We find that the decision reached by Holaday, not to disclose the possible dangers of uranium mining to the miners, was based on his judgment of what the best course of action" } ]

[ { "docid": "22711025", "title": "", "text": "cases involving the constitutional limitations on the exercise of police power, Justice Holmes’ opinions for the Court made clear that the Court did not view overly restrictive regulation as triggering an award of compensation, but as an invalid means of accomplishing what constitutionally can be accomplished only through the exercise of eminent domain. See, e. g., Block v. Hirsh, 256 U. S. 135, 156 (1921); Hudson County Water Co. v. McCarter, 209 U. S. 349, 355 (1908); Martin v. District of Columbia, 205 U. S. 135, 139 (1907). We need not pass upon the merits of petitioners’ arguments, for even if viewed as a question of due process, respondent’s claim is premature. Viewing a regulation that “goes too far” as an invalid exercise of the police power, rather than as a “taking” for which just compensation must be paid, does not resolve the difficult problem of how to define “too far,” that is, how to distinguish the point at which regulation becomes so onerous that it has the same effect as an appropriation of the property through eminent domain or physical possession. As we have noted, resolution of that question depends, in significant part, upon an analysis of the effect the Commission’s application of the zoning ordinance and subdivision regulations had on the value of respondent’s property and investment-backed profit expectations. That effect cannot be measured until a final decision is made as to how the regulations will be applied to respondent’s property. No such decision had been made at the time respondent filed its § 1983 action, because respondent failed to apply for variances from the regulations. V In sum, respondent’s claim is premature, whether it is analyzed as a deprivation of property without due process under the Fourteenth Amendment, or as a taking under the Just Compensation Clause of the Fifth Amendment. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Justice White dissents from the holding that the issues in this case are not ripe for decision at this time. Justice" } ]

[ { "docid": "21936355", "title": "", "text": "has been extended to equal protection and due process challenges to zoning decisions); Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 96-97 (2d Cir.1992) (applying ripeness requirement to substantive due process claims); see also Kittay, 112 F.Supp.2d at 349 & n. 5. Inasmuch as plaintiffs takings, due process and equal protection claims, (see Compl., First, Second and Fourth Claims for Relief), arise out of the same factual events, namely defendants’ alleged actions in failing to act on plaintiffs site application, including defendants’ alleged failure to notify plaintiff of Section 85-79 of the Town Code and defendants’ alleged selective enforcement of this Section, the Court will apply the same ripeness inquiry to plaintiffs takings, due process and equal protection claims. See Dougherty, 282 F.3d at 88-89, 92 n. 7; Goldfine v. Kelly, 80 F.Supp.2d 153, 158-59 (S.D.N.Y.2000); Kittay, 112 F.Supp.2d at 349 & n. 5. (a) Final Decision Requirement A “final decision” is a “definitive position on the issue that inflicts an actual, concrete injury.” Williamson, 473 U.S. at 193, 105 S.Ct. 3108, 87 L.Ed.2d 126; see San Remo Hotel, L.P. v. City and County of San Francisco, Cal., 545 U.S. 323, 125 S.Ct. 2491, 2506, 162 L.Ed.2d 315 (2005) (holding “a claim that the 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”) (internal quotation marks and citation omitted). For example, “[i]n order to have a final decision, a development plan must be submitted, considered and rejected by the governmental entity. Even when the plaintiff applies for approval of a subdivision plan and is rejected, a claim is not ripe until plaintiff also seeks variances that would allow it to develop the property.” Goldfine, 80 F.Supp.2d at 159 (internal quotation marks and citations omitted). “The rationale behind the finality requirement is that a court cannot determine whether a Plaintiff has been deprived of property arbitrarily or otherwise, until it has a final definitive position before it on how the administrative" }, { "docid": "8100474", "title": "", "text": "to create a ripe claim. Id. The Court in Williamson County explained that an as-applied challenge in the context of discretionary regulations is not ripe until the decision-making body has made a final decision with respect to how the regulation will affect the particular property in question. 473 U.S. at 187, 105 S.Ct. 3108; see also Gerlach Livestock Co. v. United States, 111 Ct.Cl. 1, 76 F.Supp. 87, 97 (1948) (“So long as it is conjectural whether or not defendant will actually take plaintiffs property, a taking has not occurred, but when conjecture ripens into a definitely asserted purpose and steps are taken to carry out that purpose, the taking may be said to have occurred.”); cf. Franconia Assocs. v. United States, — U.S. -, 122 S.Ct. 1993, 2002, 153 L.Ed.2d 132 (2002). However, where a discretionary decision has not been sought, a facial challenge is still available. See Yee v. City of Escondido, 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992). Regulatory takings claims based on as-applied challenges have, in the past, focused on discretionary statutes or regulations, where the governmental authority has discretion to decide to whose property the regulation will apply. In those contexts, as the Supreme Court in Williamson County explained, the taking only occurs when the government makes a final decision with respect to the application of the rule to the particular property in question. Williamson County, 473 U.S. at 187, 105 S.Ct. 3108. In some cases, like this one, the situation is different in that the regulation is not discretionary. See Cienega Gardens v. United States, 265 F.3d 1237, 1246 (Fed.Cir.2001) (“Other cases cited by the Owners also conclude that where an agency has no discretion in the application of a contested regulation, an aggrieved party does not need to obtain a final decision from the agency determining the scope of the regulation.”); Greenbrier v. United States, 193 F.3d 1348, 1359 (Fed.Cir.1999) (“The failure to follow all applicable administrative procedures can only be excused in the limited circumstance in which the administrative entity has no discretion regarding the regulation’s applicability and" }, { "docid": "22417068", "title": "", "text": "(1997), another case involving the Tahoe Basin, as support for the proposition that its claims are now ripe. In fact, Suitum compels precisely the opposite conclusion. In a comprehensive survey of the doctrinal line following Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Supreme Court clearly explained that a regulatory takings claim is only ripe if the plaintiff “demonstrate[s] that she has both received a ‘final decision regarding the application of the [challenged] regulations to the property at issue’ from ‘the government entity charged with implementing the regulations,’ and sought ‘compensation through the procedures the State has provided for doing so.’” Suitum, 520 U.S. at 734, 117 S.Ct. 1659 (quoting Williamson County, 473 U.S. at 186, 194, 105 S.Ct. 3108). The 10% Plaintiffs have not satisfied the first requirement. No 10% Plaintiff has alleged that he has applied to take advantage of the mitigation program, that a final decision applying the mitigation program to his particular property has been made, or that an application to reach such a final decision would be futile. The prerequisites are clear, and there is no allegation that they have been met. The Suitum Court’s rationale, which ties ripeness to the lack of residual discretionary authority of the regulatory deci-sionmaker, also indicates that the 10% Plaintiffs’ as-applied claims are not yet ripe. In Suitum, the Agency had already applied its regulations to Suitum’s parcel and had definitively precluded that parcel from all development. Suitum, 520 U.S. at 730-32, 117 S.Ct. 1659. The only action remaining for the Agency was the nondis-cretionary transfer of certain “transferable development rights” to Suitum. Id. The Court carefully distinguished Suitum’s claims, which were not subject to any further discretionary decision, from the unripe claims of plaintiffs in the Williamson County line, whose “particular lot[s] of land ... [are] subject to the decision of a regulatory body invested with great discretion, which it has not yet even been asked to exercise.” Id. at 739-40, 117 S.Ct. 1659. Here, the Agency has “great discretion” in determining the impact of proposed mitigation" }, { "docid": "8100473", "title": "", "text": "repealed or modified or the appropriations might fail). This stems naturally from the requirement of “application” to a particular piece of property in as-applied challenges. A statute or regulation cannot be applied to a particular piece of property until it goes into effect. It is only when the rule has gone into effect that a plaintiff may have a ripe as-applied challenge. This may occur on the same day as enactment. In that case, however, it is the fact that the rule has gone into effect, and not the fact that it has been enacted, that makes it ripe on that day. Furthermore, as the Supreme Court has held, even the fact that a rule has gone into effect may not be sufficient to make ripe an as-applied challenge. See Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 187, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). This is seen most apparently where the rule is discretionary and the Court has required that a final decision adverse to the property holder is required to create a ripe claim. Id. The Court in Williamson County explained that an as-applied challenge in the context of discretionary regulations is not ripe until the decision-making body has made a final decision with respect to how the regulation will affect the particular property in question. 473 U.S. at 187, 105 S.Ct. 3108; see also Gerlach Livestock Co. v. United States, 111 Ct.Cl. 1, 76 F.Supp. 87, 97 (1948) (“So long as it is conjectural whether or not defendant will actually take plaintiffs property, a taking has not occurred, but when conjecture ripens into a definitely asserted purpose and steps are taken to carry out that purpose, the taking may be said to have occurred.”); cf. Franconia Assocs. v. United States, — U.S. -, 122 S.Ct. 1993, 2002, 153 L.Ed.2d 132 (2002). However, where a discretionary decision has not been sought, a facial challenge is still available. See Yee v. City of Escondido, 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992). Regulatory takings claims based on as-applied challenges have, in the" }, { "docid": "5885997", "title": "", "text": "106 S.Ct. 2561, 91 L.Ed.2d 285 (1986); Smithfield Concerned Citizens v. Town of Smithfield, 719 F.Supp. 75, 77 (D.R.I.1989). The remedy for a violation of the just compensation clause is money damages calculated by the value of the property rights taken and the duration of the taking. For such a claim to be ripe, the landowners must overcome two hurdles: they must obtain a final decision regarding the application of the zoning ordinance to their property (the final decision hurdle) and they must utilize state procedures which provide for obtaining just compensation (the just compensation hurdle). Williamson County Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 185-91, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). Under the just compensation rule, a Fifth Amendment claim is not ripe until the landowner has pursued all available state procedures to obtain just compensation. Id. at 194, 105 S.Ct. 3108. In this case, plaintiffs have not alleged that they utilized a state procedure to obtain compensation. Therefore, their just compensation claim is not ripe. Plaintiffs may also intend to claim that Section VI so destroys the value of their property as to effect a taking by eminent domain. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). Such an application would be an invalid exercise of the police power, and courts sometimes call this a “due process” takings claim. Id. at 1030-31, 112 S.Ct. 2886. The final decision requirement applies to due process takings claims, as it does to just compensation claims. Williamson County, 473 U.S. at 199-200, 105 S.Ct. 3108 (court cannot determine whether regulation goes too far unless it knows how far regulation goes); Smithfield Concerned Citizens, 719 F.Supp. at 81-82. Under the final decision rule, the property owner must seek variances from the applicable regulations, or a hearing and an appeal of any adverse decision. Id. at 187-88, 105 S.Ct. 3108. The reason for this rule is that one factor in the adjudication of a takings claim is “the economic impact of the challenged action and the extent to which it interferes with reasonable" }, { "docid": "22205432", "title": "", "text": "Because it is clear the Church cannot establish at least two of the four elements of equitable estoppel, we must affirm the district court’s grant of summary judgment to defendants on this issue. Green, 185 Cal.App.3d at 556, 230 Cal.Rptr. 13. C. Ripeness We agree with the district court’s decision to apply the Williamson County final decision requirement here and approve the dismissal of the Church’s RLUIPA claims as unripe for lack of a final decision: that reasoning encapsulates well why the Church’s RLUIPA claims are unreviewable by this court at this time. We cannot determine if the Church has suffered a “substantial burden” under RLUIPA until at least one Use Permit application has been submitted. The Church’s remaining arguments asserting the ripeness of its other claims are unavailing, and because the Church did not sufficiently plead, its remaining § 1983 claims do not merit our review. 1. The Williamson County Final Decision Requirement and Its Application to RLUIPA Claims In the landmark takings case Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Supreme Court held that “[a] claim that the 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.” 473 U.S. at 186, 105 S.Ct. 3108. The property owners in that case had not yet submitted their plan for development, nor had they filed even a single application for a vari anee, and therefore, the Court held, their takings claim was not ripe because there was no “final decision” regarding the permitted use of the property to which it could look in making its decision. Id. at 187-91, 105 S.Ct. 3108. This court later applied the Williamson County final decision requirement to takings claims as well. Hoehne v. County of San Benito, 870 F.2d 529, 532 (9th Cir.1989) (citing Williamson County, 473 U.S. at 186, 105 S.Ct. 3108). Many of our sister circuits, as well" }, { "docid": "6459494", "title": "", "text": "challenges the subject matter jurisdiction of this court, arguing that Flying J’s constitutional claims are actually takings claims, and that because Flying J has not gone through the process for receiving compensation from the city for the alleged taking the claim is not ripe. Flying J challenges the district court’s dismissal of the case under Rule 12(b)(6) for failure to state a claim upon which relief could be granted. We take each argument in turn. A. Whether the district court improperly assumed subject matter jurisdiction over the case in violation of the ripeness requirements of Williamson County Regional Planning Commission v. Hamilton Bank. As an initial matter, New Haven argues that this court lacks subject matter jurisdiction over the case because Flying J is really asserting a takings claim cloaked as an equal protection claim, and that because Flying J has not exhausted its zoning application or its state remedies the case is not ripe. The Supreme Court’s decision in Williamson County Regional Planning Commission v. Hamilton Bank holds that in land use cases “a claim that the 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.” 473 U.S. 172, 186, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). Even in cases where a developer’s proposed use is clearly at odds with local zoning ordinances, the developer must first seek a variance in the local zoning laws and then pursue whatever state court remedies are available before filing a takings claim in federal court. Id. at 193-94, 105 S.Ct. 3108. The rationale for this rule is that “[t]he Fifth Amendment does not proscribe the taking of property; it proscribes the taking of property without just compensation.” Id. at 194, 105 S.Ct. 3108. If a state has a procedure in place to compensate landowners for takings, regulatory and otherwise, then the property owner’s Fifth Amendment rights have not been violated until the state process is completed and the owner has still been" }, { "docid": "15127890", "title": "", "text": "turn. I. RIPENESS The district court invoked Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), in support of its ruling that plaintiffs’ substantive due process claim cannot be deemed ripe until plaintiffs have sought final decisions from the Smithfield Zoning Board by applying for variances. Until that time, said the court, there is no basis for determining whether or to what extent they have been deprived of their property. Williamson was a suit by a developer whose plans for developing a particular tract of land had been blocked by a change in the local zoning laws. The suit was brought on the basis of both the just compensation clause and the due process clause. The Supreme Court held that a regulatory taking claim invoking either of the two clauses was unripe until the gov ernmental entity charged with implementing the regulation had reached a final decision regarding the application of the regulations to the property at issue. A final decision would not be reached until concrete plans for development were submitted and disapproved and application for variances made and denied. Williamson, however, is inapposite to the present case. The theory of due process invoked by the plaintiffs in Williamson was that “regulation that goes so far that it has the same effect as a taking by eminent domain is an invalid exercise of the police power, violative of the Due Process Clause of the Fourteenth Amendment.” Williamson, 473 U.S. at 197, 105 S.Ct. at 3122. Under this particular theory of due process, the step of applying for variances must of necessity become a prerequisite to bringing a due process challenge — whether facial or as-applied — because only by applying for variances would it become possible to learn whether or not the zoning ordinance had the same effect as a taking by eminent domain. If a variance were granted, any taking claim would disappear. Here, plaintiffs’ theory of substantive due process is markedly different from that propounded in Williamson. Rather than relying on Pennsylvania Coal v. Mahon, 260 U.S. 393," }, { "docid": "8100475", "title": "", "text": "past, focused on discretionary statutes or regulations, where the governmental authority has discretion to decide to whose property the regulation will apply. In those contexts, as the Supreme Court in Williamson County explained, the taking only occurs when the government makes a final decision with respect to the application of the rule to the particular property in question. Williamson County, 473 U.S. at 187, 105 S.Ct. 3108. In some cases, like this one, the situation is different in that the regulation is not discretionary. See Cienega Gardens v. United States, 265 F.3d 1237, 1246 (Fed.Cir.2001) (“Other cases cited by the Owners also conclude that where an agency has no discretion in the application of a contested regulation, an aggrieved party does not need to obtain a final decision from the agency determining the scope of the regulation.”); Greenbrier v. United States, 193 F.3d 1348, 1359 (Fed.Cir.1999) (“The failure to follow all applicable administrative procedures can only be excused in the limited circumstance in which the administrative entity has no discretion regarding the regulation’s applicability and its only option is enforcement.... [I]n such circumstances, no uncertainty remains regarding the impact of the regulation ....”) (citations omitted). Where a rule is non-discretionary there is no doubt as to whose property it applies; here the rules applied to all tobacco vending machines. That does not mean, however, that to succeed on an as-applied challenge, the property owner need not show that the regulation has been applied to his property. It simply means that in most cases this showing will not be onerous because once the rule is in effect it has been “applied” to that particular property. For a non-discretionary rule, a “final decision,” required by Williamson County for an as-applied challenge, is made when the rule goes into effect. In sum, facial challenges to statutes or regulations are ripe as of the enactment of the rule, but, as the Court stated in Keystone, are particularly hard to prove. As-applied challenges require a showing of application to the particular property in question. This requires that the decision-making body make a final decision as" }, { "docid": "11022684", "title": "", "text": "(1978). In sum, “determining whether a regulatory action effects a taking requires complex factual assessments of the purposes and economic effects of government actions[.]” Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 685 (9th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 924, 127 L.Ed.2d 217 (1994). III. Ripeness Requirements for As-Applied Claims A. Ripeness An “as applied” challenge is “a claim that the particular impact of a government action on a specific piece of property requires the payment of just compensation.” Carson Harbor, 37 F.3d at 474. We have previously noted that there are “two independent hurdles to the filing of a [regulatory] taking claim in federal court against a state or local government.” Id. (citing Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 186, 105 S.Ct. 3108, 3116, 87 L.Ed.2d 126 (1985)). Only the first, known as the “final decision requirement,” is at issue in this case and it requires Suitum to show that before filing suit, she sought a “final decision from [TRPA] regarding the application of the regulation to the property at issue.” Carson Harbor, 37 F.3d at 474. We recently explained that finality “helps the court evaluate whether regulation of the subject property is excessive by identifying the extent of the regulation.” Dodd v. Hood River County, 59 F.3d 852, 858 (9th Cir. 1995). The court cannot “determine whether a regulation has gone ‘too far’ unless it knows how far the regulation goes.” Kinzli, 818 F.2d at 1453 (quoting MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1986)). We have not previously discussed the effect of a transfer of development rights on a regulatory taking claim. However, Judge Fletcher has made clear, in dicta, that she would require pursuit of transfer of development rights before a regulatory taking claim against TRPA could be considered ripe. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 911 F.2d 1331, 1344 n. 3 (9th Cir.1990)(Fletcher, J. concurring), cert. denied, 499 U.S. 943, 111 S.Ct. 1404, 113 L.Ed.2d 459 (1991). As explained below, we" }, { "docid": "23633073", "title": "", "text": "the fifth and fourteenth amendments and that, as a result, they were not entitled to relief under 42 U.S.C. § 1983. We believe that the district court erred, not because the court should have found that a taking had occurred, but because it should have dismissed the takings claim as not ripe for adjudication. The district court applied an incorrect ripeness test, prematurely reaching the merits and resting its decision on the finding of “no taking.” Id. at 616-17, 624. The district court properly recognized that under Supreme Court authority, the Kinzlis’ claim that Measure 0 effected a “taking” as applied to their property does not, as a rule, present a concrete controversy ripe for adjudication unless the Kinzlis have first submitted a development plan or applied for a land use permit. Kinzli, 620 F.Supp. at 616. See also MacDonald, Sommer & Frates v. Yolo County, — U.S.-, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1986); Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 3117, 87 L.Ed.2d 126 (1985); Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980). Recently, in MacDonald, the Supreme Court explained that to assert a regulatory takings claim, a plaintiff must establish its two components: (1) that the regulation has gone so far that it has “taken” plaintiff’s property, and (2) that any compensation tendered is not “just.” MacDonald, 106 S.Ct. at 2566. To establish this first component of a regulatory takings claim, “an essential prerequisite” must be present: there must be a final and authoritative determination of the type and intensity of development legally permitted on the subject property. A court cannot determine whether a regulation has gone “too far” unless it knows how far the regulation goes. Id. This “final and authoritative determination” must expose “the nature and extent of permitted development.” Id. at 2567. See also Norco Construction, Inc. v. King County, 801 F.2d 1143, 1145-46 (9th Cir.1986). The Supreme Court has expounded the requirements for a “final and authoritative determination.” In Hamilton Bank, the Supreme Court not only" }, { "docid": "8100472", "title": "", "text": "of legislation may be sufficient to constitute a taking claim. See Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 736 n. 10, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997) (“Such ‘facial’ challenges to regulation are generally ripe the moment the challenged regulation or ordinance is passed, but face an ‘uphill battle’.... ”); Keystone, 480 U.S. at 495, 107 S.Ct. 1232; Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 295, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). Unlike the context of a facial challenge, where mere enactment is sufficient to make a claim ripe, the Supreme Court has not held that it is sufficient in the context of an as-applied challenge. See Danforth v. United States, 308 U.S. 271, 284, 286, 60 S.Ct. 231, 84 L.Ed. 240 (1939) (holding, in the context of a physical taking, that the mere enactment of legislation which authorizes the condemnation of property cannot be a taking because it can be repealed or modified or the appropriations might fail). This stems naturally from the requirement of “application” to a particular piece of property in as-applied challenges. A statute or regulation cannot be applied to a particular piece of property until it goes into effect. It is only when the rule has gone into effect that a plaintiff may have a ripe as-applied challenge. This may occur on the same day as enactment. In that case, however, it is the fact that the rule has gone into effect, and not the fact that it has been enacted, that makes it ripe on that day. Furthermore, as the Supreme Court has held, even the fact that a rule has gone into effect may not be sufficient to make ripe an as-applied challenge. See Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 187, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). This is seen most apparently where the rule is discretionary and the Court has required that a final decision adverse to the property holder is required" }, { "docid": "536872", "title": "", "text": "the plaintiffs cannot assert a facial challenge to § 96-109, and thus lack standing to attack the alleged unconstitutionality of the provision as applied to third parties. Plaintiffs only permissible challenge to the constitutionality of § 96-109, therefore, would be an “as applied challenge.” 2. An “As Applied” Challenge RIPENESS As noted earlier, plaintiffs do not contend that § 96-109 is unconstitutional as applied to them. An “as applied” challenge would not, in any event, be ripe for adjudication. In Williamson Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Supreme Court found plaintiff’s Fifth Amendment taking and Fourteenth Amendment substantive due process claims based upon the application of zoning regulations premature because plaintiffs never applied for a variance from the regulations. The Court first observed that “taking” claims are “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,” and then extended this holding to substantive due process claims based upon the application of zoning resolutions. 473 U.S. at 186, 200, 105 S.Ct. at 3116, 3123. As the Court pointed out, proper adjudication of such claims depends in large part upon an analysis of the effect the [administrative body’s] application of the zoning ordinance and subdivision regulations had on the value of respondent’s property and investment-backed profit expectations. That effect cannot be measured until a final decision is made as to how the regulations will be applied to respondent’s property. No such decision had been made at the time resondent filed its § 1983 action, because respondent failed to apply for variances from the regulations. Id. at 200, 105 S.Ct. at 3123. In the case sub judice, plaintiffs admittedly never sought a certificate of no harassment. They therefore cannot allege that the revocation of their permit constituted a final determination of whether they could make alterations to their buildings, rendering their claim ripe for adjudication. Nor can they claim that the provisions of § 96-109 were applied to them in an unconstitutional manner. Since plaintiffs" }, { "docid": "2350990", "title": "", "text": "is plainly satisfied here: Washlefske claims that money belonging to him was taken from his prison accounts. The conduct Washlefske challenges is undisputed and arises from an ongoing application of Virginia statutes. Rather, the question is one of prudential ripeness — whether we should exercise federal jurisdiction. See Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 733 n. 7, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997). This issue springs from the decision in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), where the Supreme Court held that a landowner’s claim — that State land-use regulations as applied to him had effected an uncompensated taking of his property — was premature and, therefore, not yet ripe for consideration in federal court. The Supreme Court reasoned that because the State agencies had not yet “arrived at a definitive position on the issue that inflicts an actual, concrete injury,” Williamson County, 473 U.S. at 193, 105 S.Ct. 3108, there had been no final decision on the nature and impact of the State’s actions, and the plaintiffs injury in fact was too uncertain to satisfy the requirements of prudential ripeness. In Suitum, however, the “final decision” requirement of Williamson County was found to have been satisfied when the state regulatory process had come to an end and the landowner had to take no further administrative steps to obtain the state’s final position. “The demand for finality [was] satisfied by Suitum’s claim, ... there being no question there about how the ‘regulations at issue [apply] to the particular land in question.’ ” Suitum, 520 U.S. at 739, 117 S.Ct. 1659 (quoting Williamson County, 473 U.S. at 191, 105 S.Ct. 3108) (second alteration in original). In this case, the finality of the State’s position has not been questioned; the statute’s language is clear and its impact upon Washlefske is uncontroverted. According to Washlefske’s complaint, he claims a property interest in the principal in his prison accounts and, as an incident thereto, a property interest in the interest earned on that principal. Not only is the" }, { "docid": "8100477", "title": "", "text": "to the application of the rule to the particular piece of property, as the Supreme Court stated in Williamson County. For discretionary rules, this occurs after the property owner has sought and been denied a favorable decision from the governing body. For non-discretionary rules, application occurs once the rule goes into effect, whether that be on the date of enactment or some later date. This later date may be statutory or regulatory, i.e. articulated in a rule, or it may be pragmatic, for example in a case where the rule simply cannot be applied until a particular time. In this case, we are presented with an as-applied challenge to federal regulations. Plaintiffs continually assert that their particular contracts were taken as a result of enforcement of the FDA regulations. They have never asserted a broader, facial challenge to the regulations, and even if they had, such a challenge would be moot in the aftermath of Brown & Williamson. Therefore, our takings analysis in this case must conform to the requirements for proving an as-applied taking. Given that this case presents an as-applied challenge, the mere enactment of the regulations is not sufficient to create a taking. As we have already explained, mere enactment is sufficient only in the context of facial challenges. This conclusion is not affected by the fact that this regulation was not discretionary, as mere enactment is not sufficient for as-applied challenges regardless of whether or not they are discretionary. In this case, the FDA issued the final regulations on Au gust 28, 1996, but the regulations were not scheduled to become effective until August 28, 1997. Therefore, as the trial court correctly determined, the earliest date that a taking could have commenced was August 28,1997. As this challenge is one of application, the next question is: When was the rule applied to the property at issue? The regulation at issue was not discretionary, and therefore, under normal circumstances would have been ripe for an as-applied takings challenge as of its effective date. However, this is not the typical case where “application” is easily proven, because in" }, { "docid": "12684106", "title": "", "text": "address this issue at oral argument because “considerations of ripeness are sufficiently important that we are required to raise the issue sua sponte even though the parties do not.” Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 535 (3d Cir.1988). A. Ripeness “The ripeness doctrine serves ‘to determine whether a party has brought an action prematurely and counsels abstention until such time as a dispute is sufficiently concrete to satisfy the constitutional and prudential requirements of the doctrine.’ ” Khodara Envtl., Inc. v. Blakey, 376 F.3d 187, 196 (3d Cir.2004) (quoting Peachlum v. City of York, 333 F.3d 429, 433 (3d Cir.2003)). In Williamson County Regional Planning Com. v. Hamilton Bank, 473 U.S. 172, 186, 194-95, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Supreme Court held that an as-applied Fifth Amendment Just Compensation Takings claim against a municipality’s enforcement of a zoning ordinance is not ripe until (1) “the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue” (the “finality rule”), and (2) the plaintiff has unsuccessfully exhausted the state’s procedures for seeking “just compensation,” so long as the procedures provided by the state were adequate. 1. Williamson Prong One: The Finality Rule We have said that Williamson’s finality rule bars not only as-applied Just Compensation Takings claims, but also as-applied substantive due process and equal protection “claims by property owners or tenants who have challenged the denial of a permit by an initial decision-maker but failed to take advantage of available, subsequent procedures.” Lauderbaugh v. Hopewell Twp., 319 F.3d 568, 574 (3d Cir.2003); see also Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1292, 1295 (3d Cir.1993) (barring plaintiffs as-applied SDP and EPC claims against municipal land use decision as unripe). Only once a “decision maker has arrived at a definitive position on the issue” has a property owner been inflicted with “an actual, concrete injury.” Williamson, 473 U.S. at 192, 105 S.Ct. 3108. This rule does not apply, however, to facial attacks on a zoning ordinance, i.e., a claim that" }, { "docid": "4787125", "title": "", "text": "spent considerable money. The court held that the last discretionary act was the special management area permit, but that the certification of the referendum nullified the effect of that permit and the building permits, and thus that the developer had had no right to rely on those permits. In our case, Bishop and Kaiser never even had the proper zoning in place for their resort development. Thus, Bishop and Kaiser’s claim that they had a vested right to assurances that they could develop at Queen’s Beach must fail. IV RIPENESS The City argues that plaintiffs’ claims are not ripe for review. I agree that plaintiffs have failed to meet either of the finality requirements imposed by the recent Supreme Court cases of Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) and MacDonald, Sommer & Frates v. Yolo County, — U.S. -, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986). In Williamson County, the Supreme Court held that “a claim that the 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.” 105 S.Ct. at 3117. The Court reasoned that it is simply impossible to evaluate the economic impact of the regulations and the extent to which they interfered with reasonable investment-backed expectations un til the administrative agency has made a final definitive determination on how it will apply the regulations at issue to the particular land in question. Id. at 3119. In addition, the Court held that a taking claim is not ripe until a plaintiff has sought compensation through state procedures. The Court reasoned that “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.” Id. at 3121. The burden is on the plaintiff to show “that the inverse condemnation procedure is unavailable or inadequate, and until" }, { "docid": "4305336", "title": "", "text": "of (1) “the fitness of the issues for judicial decision” and (2) “the hardship to the parties of withholding court consideration.” Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507. Holly Springs does not argue that Opulent Life’s claims are unripe under these ordinary ripeness considerations, but instead that Opulent Life has not satisfied a prudential ripeness requirement set forth in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). See Rosedale Missionary Baptist Church v. New Orleans City, 641 F.3d 86, 89 n. 2 (5th Cir.2011) (collecting Supreme Court cases for the proposition that Williamson County’s ripeness requirements are prudential). Under Williamson County, Fifth Amendment regulatory takings claims are 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.” 473 U.S. at 186, 105 S.Ct. 3108. Yet even assuming arguendo that Williamson County’s final-decision rule applies to Opulent Life’s claims, it presents no barrier to our adjudicating Opulent Life’s facial challenges to the ordinance. The Supreme Court has held Williamson County to be inapplicable to facial challenges. See Yee v. City of Escondido, 503 U.S. 519, 533-34, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992) (“While ... a claim that the ordinance effects a regulatory taking as applied to petitioners’ property would be unripe for [failure to satisfy Williamson County], petitioners mount a facial challenge to the ordinance.” (citation omitted)). Although Holly Springs does not contest Article III ripeness, we briefly address the application of ordinary ripeness principles. See Urban Developers LLC v. City of Jackson, Miss., 468 F.3d 281, 292 (5th Cir.2006) (before reaching the merits we “must be convinced that the claim in question is ripe, even if neither party has raised the issue”). Opulent Life’s facial challenges are easily ripe. First, they are fit for judicial decision because they raise pure questions of law. See Triple G Landfills, Inc. v. Bd. of Comm’rs, 977 F.2d 287, 289 (7th Cir.1992) (“This lawsuit ... mounts a facial attack upon the" }, { "docid": "8100476", "title": "", "text": "its only option is enforcement.... [I]n such circumstances, no uncertainty remains regarding the impact of the regulation ....”) (citations omitted). Where a rule is non-discretionary there is no doubt as to whose property it applies; here the rules applied to all tobacco vending machines. That does not mean, however, that to succeed on an as-applied challenge, the property owner need not show that the regulation has been applied to his property. It simply means that in most cases this showing will not be onerous because once the rule is in effect it has been “applied” to that particular property. For a non-discretionary rule, a “final decision,” required by Williamson County for an as-applied challenge, is made when the rule goes into effect. In sum, facial challenges to statutes or regulations are ripe as of the enactment of the rule, but, as the Court stated in Keystone, are particularly hard to prove. As-applied challenges require a showing of application to the particular property in question. This requires that the decision-making body make a final decision as to the application of the rule to the particular piece of property, as the Supreme Court stated in Williamson County. For discretionary rules, this occurs after the property owner has sought and been denied a favorable decision from the governing body. For non-discretionary rules, application occurs once the rule goes into effect, whether that be on the date of enactment or some later date. This later date may be statutory or regulatory, i.e. articulated in a rule, or it may be pragmatic, for example in a case where the rule simply cannot be applied until a particular time. In this case, we are presented with an as-applied challenge to federal regulations. Plaintiffs continually assert that their particular contracts were taken as a result of enforcement of the FDA regulations. They have never asserted a broader, facial challenge to the regulations, and even if they had, such a challenge would be moot in the aftermath of Brown & Williamson. Therefore, our takings analysis in this case must conform to the requirements for proving an as-applied taking." }, { "docid": "17661024", "title": "", "text": "plaintiffs property, as well as award damages to compensate for the effects of the application. Id. at 722. A just compensation temporary takings claim, on the other hand, seeks money damages for the value of the property rights taken by the application of a regulation. Id. at 720. To establish a violation of the just compensation clause, a property owner “must demonstrate that his property was ‘taken,’ i.e., that the regulation ‘goes too far,’ and that there is no provision to award him just compensation.” Id., (citing MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1986)). For either claim to be considered ripe for adjudication, “the governmental entity charged with implementing the regulations” must have reached a “final decision regarding the application of the regulations to the property at issue.” See Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 186, 105 S.Ct. 3108, 3116, 87 L.Ed.2d 126 (1985); see Eide, 908 F.2d at 724. A final decision is made when the “initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury.” Williamson, 473 U.S. at 193, 105 S.Ct. at 3120. As the Court explained in MacDonald, Sommer & Frates in the context of a just compensation claim, “[a] court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regulation goes.” Id., 477 U.S. at 348, 106 S.Ct. at 2566. Similarly, in an as applied arbitrary and capricious claim, “[i]f the authority has not reached a final decision with regard to the application of the regulation to the landowner’s property, the landowner cannot assert an as applied challenge to the decision because, in effect, a decision has not yet been made.” Eide, 908 F.2d at 725. Of course, requiring a landowner to wait until the County has made a final decision to apply a zoning ordinance to his property does not mean that he has to exhaust his administrative remedies and appeal the final ruling of the initial decisionmaker. Williamson, 473 U.S. at 193, 105" } ]

[ { "docid": "12608725", "title": "", "text": "(a) the freedom to send judicial documents, by postal channels, directly to persons abroad, (b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of destination; (c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination. KHI concedes that Japan has not objected to Article 10(a), while it specifically objected to Articles 10(b) and (c) of the Convention. Indeed, because the Convention has the status of a self-executing treaty, and thus, it constitutes the Supreme law of the land under Article VI of the United States Constitution, Article 10(a) takes precedence over state law. Vorhees v. Fischer & Krecke, 697 F.2d 574 (4th Cir.1983). According to the Practical Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1983) (“Handbook”), “Japan has not declared that it objects to service through postal channels.” Handbook, at 112. Accordingly, under Article 10(a), service on KHI, a Japanese corporation, was effective by the direct mail procedure pursuant to Virginia Code Section 8.01-329. See e.g., Shoei Kako Co. v. Superior Court, 33 Cal.App.3d 808, 109 Cal.Rptr. 402 (1973) (service by registered mail on a Japanese defendant valid under Article 10(a) of the Convention). On the issue of a Japanese translation, this court finds KHI’s position to be without merit. A Japanese translation is required only when service of process is. transmitted through the “Central Authority” pursuant to Article 5 of the Convention. See Article 5 of the Convention. However, Article 10(a) of the Convention contains no such requirement for direct postal service. See generally Shoei Kako Co. v. Superior Court, 33 Cal.App.3d 808, 109 Cal.Rptr. 402 (1973). V For the above reasons, the court denies plaintiffs’ motion for remand and defendant KHI’s motion to dismiss for lack of proper service. The parties" } ]

[ { "docid": "6918035", "title": "", "text": "position with respect to particular articles of the Hague Service Convention, a copy of which was attached to the Motion, with respect to Article 10(a), Hong Kong has “no objection.” The Court thus finds that Hong Kong does not object to judicial documents being sent by postal channels pursuant to Article 10(a). The Court further notes that many federal circuit courts and district courts, including several district courts within the Eleventh Circuit have held that Article “10(a) permits service by mail unless the country has objected to this method.” Curcuruto v. Cheshire, 864 F.Supp. at 1411; Lestrade v. U.S., 945 F.Supp.1557 (S.D.Fla.1996) (service of IRS petition by mail satisfied Hague Service Convention); Conax Florida Corp. v. Astrium Ltd. 499 F.Supp.2d 1287, 1293 (M.D.Fla.2007) (authorizing service by mail upon finding that “Article 10(a) is applicable to service of process.”); Brockmeyer v. May, 383 F.3d 798, 802 (9th Cir.2004) (Article 10(a) does include service of process by mail, reasoning that “send judicial documents” encompasses “service of process,” and that such method is “consistent with the purpose of the Convention to facilitate international service of judicial documents.”); Patty v. Toyota Motor Corp., 777 F.Supp. 956 (N.D.Ga.1991); Chrysler Corp. v. General Motors Corp., 589 F.Supp. 1182 (D.D.C.1984); Borschow Hosp. and Medical Supplies, Inc. v. Burdick-Siemens Corp., 143 F.R.D. 472 (D.P.R.1992); Robins v. Max Mara, U.S.A., Inc., 923 F.Supp. 460, 469 (S.D.N.Y.1996); Ackermann v. Levine, 788 F.2d 830, 838-40 (2nd Cir.1986) Research Systems Corp. v. IPSOS Publicite, 276 F.3d 914, 926 (7th Cir.2002), cert. denied, 537 U.S. 878, 123 S.Ct. 78,154 L.Ed.2d 133 (2002). In the Motion, TracFone also requests, that, in addition to international express mail, that the Clerk of the Court dispatch a copy of the Summons and Complaint via FedEx directed to Bequator’s President, General Manager, or other executive officer at its headquarters. Service by such means has been permitted by several federal other courts. See Ehrenfeld v. Salim a Bin Mahfouz, 2005 WL 696769, *3 (S.D.N.Y., March 23, 2005) (approving service by certified mail or FedEx); Mainstream Media, EC v. Riven, 2009 WL 2157641 *3 (N.D.Cal., July 17, 2009) (noting that" }, { "docid": "9928532", "title": "", "text": "which states in pertinent part: “Article 10 — Provided the State of destination does not object, the present Convention shall not interfere with— “(a) the freedom to send judicial documents, by postal channels, directly to persons abroad____” Since the United States has made no objection to the use of “postal channels” under Article 10(a), service of process by registered mail remains an appropriate method of service in this country under the Convention. See Practical Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 30 (1984); 1 B. Ristau, International Judicial Assistance (Civil and Commercial) § 4-10 at 132 (1984). Further, as appellants’ counsel have documented, the word “send” in Article 10(a) was intended to mean “service.” See Ris-tau, supra, § 4-28 at 165-67 (reviewing the Rapporteur’s report on the final text of the Convention and reaching the “inescapable” conclusion that use of “send” rather than the otherwise consistently used “service” “must be attributed to careless drafting”). See also Shoei Kako, 33 Cal.App.3d at 821-22, 109 Cal.Rptr. at 411-12 (“The reference to ‘the freedom to send judicial documents by postal channels, directly to persons abroad’ would be superfluous unless it was related to the sending of such documents for the purpose of service.”). Federal courts construing the Hague Convention have apparently consistently upheld mail service thereunder to defend ants in, for example, Japan, which, like the United States, is a signatory to the Convention and has not objected to mail service under Article 10(a). See Sieger v. Zisman, 106 F.R.D. 194 (N.D.Ill.1985); Weight v. Kawasaki Heavy Industries, 597 F.Supp. 1082, 1085-86 (E.D.Va.1984); Chrysler v. General Motors, 589 F.Supp. 1182, 1206 (D.D.C.1984). To uphold mail service when effected against foreign defendants in signatory states that do not object to such service, but to invalidate such service when effected against an American defendant would undermine the Hague Convention’s purpose of unifying the rules of service of process abroad. See Preamble to the Convention; cf. Tamari v. Bache, 431 F.Supp. 1226, 1228 (N.D.Ill., 1977) aff'd., 565 F.2d" }, { "docid": "797635", "title": "", "text": "Kadota v. Hosogai, 125 Ariz. 131, 608 P.2d 68, 72 (App.1980). The crucial article for this discussion is Article 10. Japan has objected to Articles 10(b) and 10(c). Hague Convention, supra, at 114. The remainder of Article 10 states: “Provided the State of destination does not object, the present Convention shall not not interfere with— “(a) the freedom to send judicial documents, by postal channels, directly to persons abroad.” Id. at 105. Some federal courts have held this to allow service of process by registered mail. See Weight v. Kawasaki Heavy Industries, Ltd., 597 F.Supp. 1082, 1085-86 (E.D.Va.1984); Chrysler Corp. v. General Motors Corp., 589 F.Supp. 1182, 1206 (D.D.C.1984). The Weight court found persuasive a handbook published by the Hague Conference on Private International Law, which stated that Japan had not declared its objection to service through postal channels. Weight, supra, at 1085. More recent opinions believe that service by registered mail is improper. In Mommsen v. Toro Co., 108 F.R.D. 444 (S.D.Iowa 1985), the Court noted that Article 10(a) “does not expressly allow ‘service’ of judicial process by postal channels * * *, [but] it merely permits one to ‘send’ judicial documents by mail.” Id. at 446. The Mommsen court’s analysis concluded: “The Hague Convention repeatedly refers to ‘service’ of documents, and if the drafters of the Convention had meant for subparagraph (a) of Article 10 to provide an additional manner of service of judicial documents, they would have used the word ‘service.’ To hold that subparagraph (a) permits direct mail service of process, would go beyond the plain meaning of process at odds with the other methods of service permitted by the Convention.” Id. This view was endorsed by the court in Pochop v. Toyota Motor Co., Ltd., 111 F.R.D. 464, 466 (S.D.Miss.1986). This Court agrees. In Vorhees v. Fischer & Krecke, 697 F.2d 574, 576 (4th Cir.1983), the court said: “Without reaching the question of the consequences of failure to conform to the treaty, we find that the action should not have been dismissed until the plaintiffs were given a reasonable opportunity to attempt to effect valid" }, { "docid": "19220162", "title": "", "text": "“appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time.” Hague Convention, preamble (emphasis added). The Convention applies “in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” Hague Convention, Art. 1 (emphasis added). The Convention sets out specific procedures to be followed in accomplishing such service. However, Article 10 provides that if the “State of destination does not object, the present Convention shall not interfere with —(a) the freedom to send judicial documents by postal channels, directly to persons abroad.” Japan has not objected to mail service under Article 10(a), though it has objected to service under 10(b) and (c). Hague Convention at n. 12. Service by mail pursuant to Rule 4(c)(2)(C)(ii), as was attempted by Sieger on December 18, 1984, is not contrary to the Hague Convention as adopted by Japan. See Shoei Kako Co., Ltd. v. Superior Court, San Francisco, 33 Cal.App.3d 808, 820-22, 109 Cal.Rptr. 402, 410-12 (1973); see also Tamari v. Bache & Co. (Lebanon) S. A. L,, 431 F.Supp. 1226, 1228-29 (N.D.Ill.), aff'd, 565 F.2d 1194 (7th Cir.1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1450, 55 L.Ed.2d 495 (1978); accord Chrysler Corp. v. General Motors Corp., 589 F.Supp. 1182, 1206 (D.D.C.1984). In Shoei Kako the court pointed out that the Convention “purports to deal with the subject of service abroad of judicial documents. The reference [in Article 10] to ‘the freedom to send judicial documents by postal channels, directly to persons abroad’ would be superfluous unless it was related to the sending of such documents for the purpose of service____ Moreover, the reference appears in the context of other alternatives to the use of the ‘Central Authority’ created by the treaty.” Shoei Kako, 33 Cal.App.3d at 821, 109 Cal.Rptr. at 411. The court concluded that the provisions of the convention do not prevent a state court’s exercise of jurisdiction in an action where the court has jurisdiction over a party arising from the nature of the" }, { "docid": "16234471", "title": "", "text": "burden of proving effective service. Familia De Boom v. Arosa Mercantil, S.A., 629 F.2d 1134, 1139 (5th Cir.1980) cert. denied, 451 U.S. 1008, 101 S.Ct. 2345, 68 L.Ed.2d 861 (1981). The Japanese version of the Convention permits the direct sending of judicial documents by litigants to Japanese residents. Hague Convention at Art. 10(a), 28 U.S.C.A. at 123 (Supp.). See supra at 640 (Japan failed to object to subpart (a), thereby adopting the provision). Whether the “sending” provision allows direct mail service of foreign defendants is the issue before the court. There has been no ruling on the question by the Fourth Circuit; however, the majority of courts faced with making the decision have concluded that service by mail is permitted under the Convention. Weight, 597 F.Supp. at 1085-86. See also Ackermann, 788 F.2d at 839; Smith, 680 F.Supp. at 849-51; Turick v. Yamaha Motor Corp., USA, 121 F.R.D. 32, 34-35 (S.D.N.Y.1988); Lemme, 631 F.Supp. at 462-64; Zisman v. Sieger, 106 F.R.D. 194, 199-200 (N.D.Ill.1985); Chrysler v. General Motors, 589 F.Supp. 1182, 1206 (D.D.C.1984). See also Fed.R.Civ.P. 4, 28 U.S.C.A. at C4-34, 1987 Practice Commentary (Supp.1988). Honda R & D urges the court to limit the scope of Article 10(a) so that it would provide for the transmittal of interlocutory documents such as interrogatories, but exclude actual service of documents by mail. Such an interpretation has been adopted by a number of courts, which, in limiting service by direct mail, have required service upon Japanese defendants through the designated central authority. Prost v. Honda Motor Co., Ltd., 122 F.R.D. 215 (E.D.Mo.1987); Cooper v. Makita, U.S.A., Inc., 117 F.R.D. 16 (D.Me.1987); Pochop v. Toyota Motor Co. Ltd., 111 F.R.D. 464 (S.D.Miss.1986); Mommsen v. Toro Co., 108 F.R.D. 444 (S.D. Iowa 1985). Generally, the position of these courts is that the word “service” is oft-used in the Hague Convention and would have been used in subpart (a) if service was intended to be carried out through the provision. Prost, 122 F.R.D. at 216. In addition it has been held that direct mail service violates basic tenets of Japanese law, therefore the propriety of" }, { "docid": "16234470", "title": "", "text": "not attempt service of Honda R & D through the Minister of Foreign Affairs as the designated central authority. Instead, the Hammonds attempted service of process upon Honda R & D as follows: (1) by substituted service upon the Secretary of State of South Carolina, deemed the involuntary agent for service pursuant to S.C.Code Ann. § 15-9-245(a), Plaintiffs’ Ex. 1; (2) by mail to Honda R & D in Japan, in accordance with S.C. Code Ann. § 36-2-806(l)(c), Plaintiffs’ Ex. 2; and (3) by service upon a domestic subsidiary (American Honda) through its registered agent in South Carolina (CT Corporation), Plaintiffs’ Ex. 3. A. Service by Mail Once a challenge to service of process has been made the court must analyze the service on two levels. First, the court must consider the statute under which process is served. Second, the court must analyze the service in light of constitutional due process principles. Ackermann v. Levine, 788 F.2d 830, 838 (2d Cir.1986); U.S. Const, amend. XIV. The party against whom the challenge is lodged has the burden of proving effective service. Familia De Boom v. Arosa Mercantil, S.A., 629 F.2d 1134, 1139 (5th Cir.1980) cert. denied, 451 U.S. 1008, 101 S.Ct. 2345, 68 L.Ed.2d 861 (1981). The Japanese version of the Convention permits the direct sending of judicial documents by litigants to Japanese residents. Hague Convention at Art. 10(a), 28 U.S.C.A. at 123 (Supp.). See supra at 640 (Japan failed to object to subpart (a), thereby adopting the provision). Whether the “sending” provision allows direct mail service of foreign defendants is the issue before the court. There has been no ruling on the question by the Fourth Circuit; however, the majority of courts faced with making the decision have concluded that service by mail is permitted under the Convention. Weight, 597 F.Supp. at 1085-86. See also Ackermann, 788 F.2d at 839; Smith, 680 F.Supp. at 849-51; Turick v. Yamaha Motor Corp., USA, 121 F.R.D. 32, 34-35 (S.D.N.Y.1988); Lemme, 631 F.Supp. at 462-64; Zisman v. Sieger, 106 F.R.D. 194, 199-200 (N.D.Ill.1985); Chrysler v. General Motors, 589 F.Supp. 1182, 1206 (D.D.C.1984). See also" }, { "docid": "4956781", "title": "", "text": "use of its postal service, and a further requirement that all documents served be written in or translated into the Japanese language. Of additional relevance to Toyota’s motion in the instant case is Japan’s objections to Article 10, subparagraphs (b) and (c). Article 10 provides: Provided the State of destination does not object, the present Convention shall not interfere with— (a) the freedom to send judicial documents, by postal channels, directly to persons abroad, (b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, (c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination. While Japan has objected to subparagraphs (b) and (c), it has not objected to subparagraph (a). Hence, the issue is whether subparagraph (a) permits service on a Japanese defendant by direct mail. Some courts which have considered this issue have concluded that by virtue of Japan’s failure to object to subparagraph (a), service of process may be effectively made by mailing the summons and complaint directly to a defendant in Japan. See, e.g., Weight v. Kawasaki Heavy Industries, Ltd., 597 F.Supp. 1082, 1085-86 (E.D.Va. 1984); Chrysler Corp. v. General Motors Corp., 589 F.Supp. 1182, 1206 (D.C.1984). In this court’s opinion, however, the better reasoned view is that service by direct mail is not permitted under the Hague Convention. In Mommsen v. Toro Co., 108 F.R.D. 444 (S.D.Iowa 1985), the court held that the plaintiff’s attempt to serve a Japanese defendant under the state’s long-arm statute, which provided for service through the Secretary of State’s office, was ineffective. The issue there was precisely the same as in the present case. The Iowa court explained that, The provision at issue here, subparagraph (a) of Article 10, does not expressly allow “service” of judicial process by postal channels in signatory nations; it merely permits one to “send” judicial documents by" }, { "docid": "797634", "title": "", "text": "Documents in Civil or Commercial Matters, 20 U.S.T. 361 (1969) (hereinafter the Hague Convention). It is undisputed that the Hague Convention governs service of process over defendant Honda here. DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 288-289 (3rd Cir.1981). Japan, as a signatory to the Hague Convention, has agreed to allow service of process via the different methods authorized in the treaty. According to Article 2 of the Hague Convention, each country shall designate a Central Authority which will undertake to receive requests for service. Hague Convention, supra, at 104. For Japan, this is the Ministry of Foreign Affairs. Id. at 113. Articles 3 through 6 discuss the procedure for using the Central Authority. Id. at 104-105. Additionally, Article 8 allows service by way of diplomatic channels, Id. at 105; Article 9 allows the forwarding of documents for the purpose of service through other designated authorities, Id.; and Article 19 allows service by any method of service permitted by the internal law of the country in which service is made. Id. at 107. See Kadota v. Hosogai, 125 Ariz. 131, 608 P.2d 68, 72 (App.1980). The crucial article for this discussion is Article 10. Japan has objected to Articles 10(b) and 10(c). Hague Convention, supra, at 114. The remainder of Article 10 states: “Provided the State of destination does not object, the present Convention shall not not interfere with— “(a) the freedom to send judicial documents, by postal channels, directly to persons abroad.” Id. at 105. Some federal courts have held this to allow service of process by registered mail. See Weight v. Kawasaki Heavy Industries, Ltd., 597 F.Supp. 1082, 1085-86 (E.D.Va.1984); Chrysler Corp. v. General Motors Corp., 589 F.Supp. 1182, 1206 (D.D.C.1984). The Weight court found persuasive a handbook published by the Hague Conference on Private International Law, which stated that Japan had not declared its objection to service through postal channels. Weight, supra, at 1085. More recent opinions believe that service by registered mail is improper. In Mommsen v. Toro Co., 108 F.R.D. 444 (S.D.Iowa 1985), the Court noted that Article 10(a) “does not expressly allow ‘service’" }, { "docid": "9928533", "title": "", "text": "Shoei Kako, 33 Cal.App.3d at 821-22, 109 Cal.Rptr. at 411-12 (“The reference to ‘the freedom to send judicial documents by postal channels, directly to persons abroad’ would be superfluous unless it was related to the sending of such documents for the purpose of service.”). Federal courts construing the Hague Convention have apparently consistently upheld mail service thereunder to defend ants in, for example, Japan, which, like the United States, is a signatory to the Convention and has not objected to mail service under Article 10(a). See Sieger v. Zisman, 106 F.R.D. 194 (N.D.Ill.1985); Weight v. Kawasaki Heavy Industries, 597 F.Supp. 1082, 1085-86 (E.D.Va.1984); Chrysler v. General Motors, 589 F.Supp. 1182, 1206 (D.D.C.1984). To uphold mail service when effected against foreign defendants in signatory states that do not object to such service, but to invalidate such service when effected against an American defendant would undermine the Hague Convention’s purpose of unifying the rules of service of process abroad. See Preamble to the Convention; cf. Tamari v. Bache, 431 F.Supp. 1226, 1228 (N.D.Ill., 1977) aff'd., 565 F.2d 1194 (7th Cir.1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1450, 55 L.Ed.2d 495 (1978); Shoei Kako, 33 Cal.App.3d at 821, 109 Cal. Rptr. 402. Nor was service ineffective because it did not satisfy the Federal Rules of Civil Procedure. The old Federal Rule 4 was superceded by the Hague Convention and thus presumptively should not limit application of the Convention. See Cook v. United States, 288 U.S. 102, 119, 53 S.Ct. 305, 311, 77 L.Ed. 641 (1933) (subsequent treaty given effect over prior, inconsistent federal statute). The district court correctly notes that Amended Rule 4(c)(2)(C)(ii), permitting mail service conforming to certain technical requirements, did not exist when Ackermann’s summons and complaint were served. In any event, whether Ackermann’s service satisfied Rule 4 as it then existed or as it now exists is irrelevant because the United States has made no declaration or limitation to its ratification of the Convention regarding Federal Rule 4, or Article 10(a) of the Convention or otherwise regarding mail service under the Convention. See Siegel, Practice Commentaries on FRCP 4," }, { "docid": "23237353", "title": "", "text": "through the judicial officers, officials or other competent persons of the State of destination. Japan has objected to subparagraphs (b) and (c), but not to subparagraph (a). The issue before this court is whether subpara-graph (a) permits service on a Japanese defendant by direct mail. In recent years, two distinct lines of Article 10(a) interpretation have arisen. Some courts have ruled that Article 10(a) permits service of process by mail directly to the defendant without the necessity of resorting to the central authority, and without the necessity of translating the documents into the official language of the nation where the documents are to be served. In general, these courts reason that since the purported purpose of the Hague Convention is to facilitate service abroad, the reference to “ ‘the freedom to send judicial documents by postal channels, directly to persons abroad’ would be superfluous unless it was related to the sending of such documents for the purpose of service.” Ackermann v. Levine, 788 F.2d 830, 839 (2d Cir.1986). See also Smith v. Dainichi Kinzoku Kogyo Co., 680 F.Supp. 847, 850 (W.D.Tex.1988); Newport Components, Inc. v. NEC Home Electronics, Inc., 671 F.Supp. 1525, 1541 (C.D.Cal.1987). These courts have further found that the use of the “send” rather than “service” in Article 10(a) “must be attributed to careless drafting.” Ackermann v. Levine, supra, 788 F.2d at 839. The second line of interpretation, advocated by Toyota, is that the word “send” in Article 10(a) is not the equivalent of “service of process.” The word “service” is specifically used in other sections of the Convention, including subsections (b) and (c) of Article 10. If the drafters of the Convention had meant for subparagraph (a) to provide an additional manner of service of judicial documents, they would have used the word “service.” Subscribers to this interpretation maintain that Article 10(a) merely provides a method for sending subsequent documents after service of process has been obtained by means of the central authority. See, e.g., Hantover, Inc. v. Omet, 688 F.Supp. 1377, 1385 (W.D.Mo.1988); Prost v. Honda Motor Co., 122 F.R.D. 215, 216 (E.D.Mo.1987); Pochop v. Toyota" }, { "docid": "3062704", "title": "", "text": "service on a defendant to be made only by a representative of the nation’s designated Central Authority, as provided for in Articles Two through Six of the Convention. Thus, Konishi argues, the personal service in Japan was invalid because it was not executed through the Central Authority. Plaintiff does not challenge the assertion that Wine of Japan is not Konishi’s agent for service of process. Rather, it contends that the mail service on Konishi was proper, noting that Japan has not objected to subparagraph (a) of Article Ten, which permits judicial documents to be sent by mail. Konishi points out in response that Section 10(a) refers to “the freedom to send judicial documents,” while sections 10(b) and 10(c) refer to “the freedom to effect service of judicial documents” (emphasis added). Thus, it argues, section 10(a) permits mail delivery only of interlocutory papers such as interrogatories; service of process, in contrast, may be accomplished only through the Central Authority, because Japan has objected to sections 10(b) and 10(c). “Although there is some merit to the proposed distinction, it is outweighed by consideration of the entire scope of the convention.” Shoei Kako Co., Ltd. v. Superior Court, San Francisco, 33 Cal. App.3d 808, 821, 109 Cal.Rptr. 402, 411 (1973). In light of the fact that the Convention “purports to deal with the subject of service abroad____ [t]he reference to ‘the freedom to send judicial documents by postal channels, directly to persons abroad’ would be superfluous unless it was related to the sending of such documents for the purpose of service.” Id. The only other courts to address this issue have agreed. See Weight v. Kawasaki Heavy Indus., Ltd., 597 F.Supp. 1082, 1085-86 (E.D.Va.1984); Chrysler Corp. v. General Motors Corp., 589 F.Supp. 1182, 1206 (D.D.C.1984); see also Practical Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, at 15 (“Japan has not declared that it objects to service through postal channels.”). Konishi disagrees with these authorities, noting that it would be incongruous for Japan to require" }, { "docid": "2915472", "title": "", "text": "the word “send” used in Article 10(a) is not the equivalent of service of process. The U.S. Courts of Appeal are split over the proper interpretation of Article 10(a). Neither the Third Circuit nor the United States Supreme Court have addressed the issue. The Second Circuit The Second Circuit and many district courts have held that Article 10(a) authorizes service of process by mail. See, e.g., Ackermann v. Levine, 788 F.2d 830, 838 (2d Cir.1986); EOI Corp. v. Medical Mktg. Ltd., 172 F.R.D. 133, 142 (D.N.J.1997); R. Griggs Group Ltd. v. Filanto S.P.A., 920 F.Supp. 1100 (D.Nev.1996); Zisman v. Sieger, 106 F.R.D. 194 (N.D.Ill.1985); Chrysler Corp. v. General Motors, 589 F.Supp. 1182 (D.D.C.1984). These courts have held that the word “send” in Article 10(a) was intended to mean “service”. See Ackermann, 788 F.2d at 838. The Appellate Division of the Superior Court of New Jersey has also concluded that Article 10(a) allows service by mail: This is the only construction which will achieve the [Hague] Convention’s stated goal of effective, expeditious and inexpensive service, ... of providing a simpler way to serve process abroad.... Moreover, interpretation of Article 10(a) as permitting mail service is generally considered the sounder view by those considered to be authoritative in the field ... It appears that a majority of the courts which have considered the matter have found mail service is permitted. Gapanovich v. Komori Corp., 255 N.J.Super. 607, 613-14, 605 A.2d 1120 (App.Div.1992) (citations omitted). The Eighth Circuit Conversely, the Eighth Circuit and many district courts have held that Article 10(a) does not authorize service of process by mail. See, e.g., Bankston v. Toyota Motor Corp., 889 F.2d 172 (8th Cir.1989); Golub v. Isuzu Motors, 924 F.Supp. 324 (D.Mass. 1996); Raffa v. Nissan Motor Co., 141 F.R.D. 45 (E.D.Pa.1991); Hantover, Inc. v. Omet, 688 F.Supp. 1377, 1385 (W.D.Mo.1988). These courts have held that the word “send” in Article 10(a) is not equivalent to “service of process”. These courts have concluded that the use of the word “service” in Article 10(b) and (c) is evidence that the drafters of the Hague Convention intended to" }, { "docid": "4956782", "title": "", "text": "Some courts which have considered this issue have concluded that by virtue of Japan’s failure to object to subparagraph (a), service of process may be effectively made by mailing the summons and complaint directly to a defendant in Japan. See, e.g., Weight v. Kawasaki Heavy Industries, Ltd., 597 F.Supp. 1082, 1085-86 (E.D.Va. 1984); Chrysler Corp. v. General Motors Corp., 589 F.Supp. 1182, 1206 (D.C.1984). In this court’s opinion, however, the better reasoned view is that service by direct mail is not permitted under the Hague Convention. In Mommsen v. Toro Co., 108 F.R.D. 444 (S.D.Iowa 1985), the court held that the plaintiff’s attempt to serve a Japanese defendant under the state’s long-arm statute, which provided for service through the Secretary of State’s office, was ineffective. The issue there was precisely the same as in the present case. The Iowa court explained that, The provision at issue here, subparagraph (a) of Article 10, does not expressly allow “service” of judicial process by postal channels in signatory nations; it merely permits one to “send” judicial documents by mail to persons abroad____ The Hague Convention repeatedly refers to “service” of documents, and if the drafters of the Convention had meant for subparagraph (a) of Article 10 to provide an additional manner of service of judicial documents, they would have used the word “service.” To hold that subparagraph (a) permits direct mail service of process, would go beyond the plain meaning of the word “send” and would create a method of service of process at odds with the other methods of service permitted by the Convention. Sending a copy of a summons and complaint by registered mail directly to a defendant in a foreign country is not a method of service of process allowed by the Hague Convention, (emphasis added). Mommsen, 108 F.R.D. at 446; see also, Reynolds v. Koh, 490 N.Y.S.2d 295, 297 (1985) (service by postal channels cannot be permitted under Article 10(a)); Ordnandy v. Lynn, 122 Misc.2d 954, 472 N.Y.S.2d 274 (1984) (same). It is clear that the plaintiff has failed to comply with the Hague Convention requirements. In response to" }, { "docid": "23237355", "title": "", "text": "Motor Co., 111 F.R.D. 464, 466 (S.D.Miss.1986); Mommsen v. Toro Co., 108 F.R.D. 444, 446 (S.D.Iowa 1985); Suzuki Motor Co. v. Superior Court, 200 Cal.App.3d 1476, 249 Cal.Rptr. 376 (1988). We find this second line of authority to be more persuasive. It is a “familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). In addition, where a legislative body “includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that [the legislative body] acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983). In Suzuki Motor Co. v. Superior Court, 249 Cal.Rptr. at 379, the court found that because service of process by registered mail was not permitted under Japanese law, it was \"extremely unlikely” that Japan’s failure to object to Article 10(a) was intended to authorize the use of registered mail as an effective mode of service of process, particularly in light of the fact that Japan had specifically objected to the much more formal modes of service by Japanese officials which were available in Article 10(b) and (e). We conclude that sending a copy of a summons and complaint by registered mail to a defendant in a foreign country is not a method of service of process permitted by the Hague Convention. We affirm the judgment of the district court and remand this case with directions that appellants be given a reasonable time from the date of this Order in which to effectuate service of process over appellee Toyota Motor Corporation in compliance with the terms of the Hague Convention. . The Honorable Oren Harris, Senior United States District Judge for the Western District of Arkansas. . 28 U.S.C. § 1292(b)" }, { "docid": "2915473", "title": "", "text": "of providing a simpler way to serve process abroad.... Moreover, interpretation of Article 10(a) as permitting mail service is generally considered the sounder view by those considered to be authoritative in the field ... It appears that a majority of the courts which have considered the matter have found mail service is permitted. Gapanovich v. Komori Corp., 255 N.J.Super. 607, 613-14, 605 A.2d 1120 (App.Div.1992) (citations omitted). The Eighth Circuit Conversely, the Eighth Circuit and many district courts have held that Article 10(a) does not authorize service of process by mail. See, e.g., Bankston v. Toyota Motor Corp., 889 F.2d 172 (8th Cir.1989); Golub v. Isuzu Motors, 924 F.Supp. 324 (D.Mass. 1996); Raffa v. Nissan Motor Co., 141 F.R.D. 45 (E.D.Pa.1991); Hantover, Inc. v. Omet, 688 F.Supp. 1377, 1385 (W.D.Mo.1988). These courts have held that the word “send” in Article 10(a) is not equivalent to “service of process”. These courts have concluded that the use of the word “service” in Article 10(b) and (c) is evidence that the drafters of the Hague Convention intended to distinguish between “sending” judicial documents and “serving” process. See Bankston, 889 F.2d at 173-74. The Eighth Circuit and its progeny concluded that “Article 10(a) merely provides a method for sending subsequent documents after service of process has been obtained by means of the central authority.” Id. at 174. Article 10(a) Authorizes Service by Mail This Courts finds the Second Circuit’s interpretation of Article 10(a) persuasive. In addition to the judicial authority, both within and outside the District of New Jersey, see, e.g., EOI, 172 F.R.D. at 142; Ackermann, 788 F.2d at 838; R. Griggs, 920 F.Supp. 1100; Zisman, 106 F.R.D. 194; Chrysler, 589 F.Supp. 1182, the United States State Department interprets Article 10(a) as allowing service by mail. Subsequent to the Eighth Circuit’s decision in Bankston, 889 F.2d 172, the State Department’s legal advisor stated that “the decision of the Court of Appeals in Bankston is incorrect to the extent that it suggests that the Hague Convention does not permit as a method of service the sending of a copy of the summons and complaint" }, { "docid": "23237354", "title": "", "text": "Co., 680 F.Supp. 847, 850 (W.D.Tex.1988); Newport Components, Inc. v. NEC Home Electronics, Inc., 671 F.Supp. 1525, 1541 (C.D.Cal.1987). These courts have further found that the use of the “send” rather than “service” in Article 10(a) “must be attributed to careless drafting.” Ackermann v. Levine, supra, 788 F.2d at 839. The second line of interpretation, advocated by Toyota, is that the word “send” in Article 10(a) is not the equivalent of “service of process.” The word “service” is specifically used in other sections of the Convention, including subsections (b) and (c) of Article 10. If the drafters of the Convention had meant for subparagraph (a) to provide an additional manner of service of judicial documents, they would have used the word “service.” Subscribers to this interpretation maintain that Article 10(a) merely provides a method for sending subsequent documents after service of process has been obtained by means of the central authority. See, e.g., Hantover, Inc. v. Omet, 688 F.Supp. 1377, 1385 (W.D.Mo.1988); Prost v. Honda Motor Co., 122 F.R.D. 215, 216 (E.D.Mo.1987); Pochop v. Toyota Motor Co., 111 F.R.D. 464, 466 (S.D.Miss.1986); Mommsen v. Toro Co., 108 F.R.D. 444, 446 (S.D.Iowa 1985); Suzuki Motor Co. v. Superior Court, 200 Cal.App.3d 1476, 249 Cal.Rptr. 376 (1988). We find this second line of authority to be more persuasive. It is a “familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). In addition, where a legislative body “includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that [the legislative body] acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983). In Suzuki Motor Co. v. Superior Court, 249 Cal.Rptr. at 379, the court found that" }, { "docid": "19220163", "title": "", "text": "Cal.Rptr. 402, 410-12 (1973); see also Tamari v. Bache & Co. (Lebanon) S. A. L,, 431 F.Supp. 1226, 1228-29 (N.D.Ill.), aff'd, 565 F.2d 1194 (7th Cir.1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1450, 55 L.Ed.2d 495 (1978); accord Chrysler Corp. v. General Motors Corp., 589 F.Supp. 1182, 1206 (D.D.C.1984). In Shoei Kako the court pointed out that the Convention “purports to deal with the subject of service abroad of judicial documents. The reference [in Article 10] to ‘the freedom to send judicial documents by postal channels, directly to persons abroad’ would be superfluous unless it was related to the sending of such documents for the purpose of service____ Moreover, the reference appears in the context of other alternatives to the use of the ‘Central Authority’ created by the treaty.” Shoei Kako, 33 Cal.App.3d at 821, 109 Cal.Rptr. at 411. The court concluded that the provisions of the convention do not prevent a state court’s exercise of jurisdiction in an action where the court has jurisdiction over a party arising from the nature of the claim asserted and notice has been given by mail service accompanied by a receipt for delivery. Judge Grady concurred in the California court’s rationale in his opinion in Tamari. He quoted Shoei Kako: “If it be assumed that the purpose of the convention is to establish one method to avoid the difficulties and controversy attendant to the use of other methods ... it does not necessarily follow that other methods may not be used if effective proof of delivery can be made.” Tamari, 431 F.Supp. at 1228, citing Shoei Kako, 33 Cal.App.3d at 821, 109 Cal.Rptr. at 411. By its terms the “Hague Convention is applicable only to attempts to serve process in foreign countries ... [It does not] control attempts to serve process on foreign corporations or agents of foreign corporations within the State of origin.” Lamb v. Volkswagenwerk Aktiengesellschaft, 104 F.R.D. 95, 97 (S.D.Fla.1985). In Lamb, as in this case, service of process was entirely accomplished within the United States by serving the agent of the foreign defendant. The court found that the" }, { "docid": "16234472", "title": "", "text": "Fed.R.Civ.P. 4, 28 U.S.C.A. at C4-34, 1987 Practice Commentary (Supp.1988). Honda R & D urges the court to limit the scope of Article 10(a) so that it would provide for the transmittal of interlocutory documents such as interrogatories, but exclude actual service of documents by mail. Such an interpretation has been adopted by a number of courts, which, in limiting service by direct mail, have required service upon Japanese defendants through the designated central authority. Prost v. Honda Motor Co., Ltd., 122 F.R.D. 215 (E.D.Mo.1987); Cooper v. Makita, U.S.A., Inc., 117 F.R.D. 16 (D.Me.1987); Pochop v. Toyota Motor Co. Ltd., 111 F.R.D. 464 (S.D.Miss.1986); Mommsen v. Toro Co., 108 F.R.D. 444 (S.D. Iowa 1985). Generally, the position of these courts is that the word “service” is oft-used in the Hague Convention and would have been used in subpart (a) if service was intended to be carried out through the provision. Prost, 122 F.R.D. at 216. In addition it has been held that direct mail service violates basic tenets of Japanese law, therefore the propriety of mail service was not considered when Japan evaluated its response to the enactment of Article 10(a). The court disagrees. Finding the reasoning of the Weight court persuasive the court declines to so narrowly construe the language of Article 10(a). Forbidding direct service by mail would render subpart (a) extraneous material. The provision must be “related to the sending of [judicial] documents for the purpose of service.” Lemme, 631 F.Supp. at 463 (citations omitted); Practical Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1983) at 112. Under this holding it is clear the Hammonds’ service of Honda R & D is in compliance with Hague Convention procedures. The direct mail service of Honda R & D is also constitutionally permissible. Ackermann, 788 F.2d at 841 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). Service by mail was “notice reasonably calculated,” Mullane at 314, 70 S.Ct. at 657," }, { "docid": "2915471", "title": "", "text": "Lilly attempted to serve defendants Opos and Roussel-France under Article 10. Article 10 provides in relevant part: Provided the State of destination does not object, the present Convention shall not interfere with— (a) the freedom to send judicial documents, by postal channels, directly to persons abroad, (b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, (c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination. Article 21 sets forth the formal procedure by which objections to service under Article 10(a) are to be made. See Hague Convention, art. 21. France and Italy have not objected to such service. See Hague Con vention, Annex, n.12 & 16. Defendants Opos and Roussel-France contend that Article 10 of the Hague Convention does not authorize service by mail because the word “send” used in Article 10(a) is not the equivalent of service of process. The U.S. Courts of Appeal are split over the proper interpretation of Article 10(a). Neither the Third Circuit nor the United States Supreme Court have addressed the issue. The Second Circuit The Second Circuit and many district courts have held that Article 10(a) authorizes service of process by mail. See, e.g., Ackermann v. Levine, 788 F.2d 830, 838 (2d Cir.1986); EOI Corp. v. Medical Mktg. Ltd., 172 F.R.D. 133, 142 (D.N.J.1997); R. Griggs Group Ltd. v. Filanto S.P.A., 920 F.Supp. 1100 (D.Nev.1996); Zisman v. Sieger, 106 F.R.D. 194 (N.D.Ill.1985); Chrysler Corp. v. General Motors, 589 F.Supp. 1182 (D.D.C.1984). These courts have held that the word “send” in Article 10(a) was intended to mean “service”. See Ackermann, 788 F.2d at 838. The Appellate Division of the Superior Court of New Jersey has also concluded that Article 10(a) allows service by mail: This is the only construction which will achieve the [Hague] Convention’s stated goal of effective, expeditious and inexpensive service, ..." }, { "docid": "797636", "title": "", "text": "of judicial process by postal channels * * *, [but] it merely permits one to ‘send’ judicial documents by mail.” Id. at 446. The Mommsen court’s analysis concluded: “The Hague Convention repeatedly refers to ‘service’ of documents, and if the drafters of the Convention had meant for subparagraph (a) of Article 10 to provide an additional manner of service of judicial documents, they would have used the word ‘service.’ To hold that subparagraph (a) permits direct mail service of process, would go beyond the plain meaning of process at odds with the other methods of service permitted by the Convention.” Id. This view was endorsed by the court in Pochop v. Toyota Motor Co., Ltd., 111 F.R.D. 464, 466 (S.D.Miss.1986). This Court agrees. In Vorhees v. Fischer & Krecke, 697 F.2d 574, 576 (4th Cir.1983), the court said: “Without reaching the question of the consequences of failure to conform to the treaty, we find that the action should not have been dismissed until the plaintiffs were given a reasonable opportunity to attempt to effect valid service of process on the defendant in a manner complying with the Hague Convention.” This Court agrees. See also Pochop, supra, at 467 (no dismissal and plaintiff given 45 days to serve process); Mommsen, supra, at 446 (four months.) Accordingly, the motion of defendant, Honda R & D, to dismiss is SUSTAINED and the motion of defendant Honda to dismiss is DENIED. Plaintiff is given ninety days within which to serve defendant Honda in accordance with the methods authorized by the Hague Convention. If such service is not obtained, plaintiffs action against Honda will be dismissed without prejudice for lack of service. . Prost neglected to plead the place of incorporation and the principal place of business for Honda R & D. However, Honda R & D, in its affidavit, avers facts which allow this Court to conclude that diversity jurisdiction is proper. Whether the affidavit is enough to prevent dismissal for lack of subject matter jurisdiction is irrelevant to this case. Considering the holding of this Court that Honda R & D should be" } ]

[ { "docid": "11556479", "title": "", "text": "section 722 which considerably exceeded the average base period net income previously used to compute the excess profits tax. As a result of this settlement, plaintiff became entitled to excess profits tax refunds for 1943, 1944 and 1945. On January 17, 1962, plaintiff’s account was adjusted in accordance with this judgment. The April 25, 1952, remittance was formally assessed thereby creating the overpayment, and the resulting refund was computed with interest. Defendant paid plaintiff a total refund of $363,957.60 on January 24, 1962. Of this total, $229,803.01 represented the amount by which the April 25, 1952 remittance exceeded the excess profits tax as adjusted by section 722 relief, and $134,154.59 represented interest. Plaintiff claims that in the refund computations defendant understated the amount by which the April 25, 1952, remittance exceeded the excess profits tax as adjusted by section 722 relief, and that the interest component is therefore too small. Defendant claims that it erroneously paid interest and that the refund should be reduced accordingly. I. DEFENDANT’S COUNTERCLAIM Because the issues are so complex and the statutory and case law relate somewhat differently to the claim and counterclaim, it is useful to separate the issues and analyze each as though the other were not involved. We look first to the counterclaim, for unless we can reject defendant’s contention that plaintiff is not entitled to any interest on the April 25, 1952 remittance, we cannot come to plaintiff’s contention that it received too little interest. Section 3771(a) of the Internal Revenue Code of 1939 provides for six percent interest on “overpayments.” Subsection (b) (2) states that interest runs against the government from the date of overpayment. Defendant argues that the April 25, 1952 remittance was merely a deposit made to stop the running of interest and not a payment. The theory is that “overpayment” is a word of art and that the case law has established that there can be no overpayment unless money is remitted with a return or in response to an assessment. Rosenman v. United States, 323 U.S. 658, 65 S.Ct. 536, 89 L.Ed. 535 (1945); Rose v." } ]

[ { "docid": "2995284", "title": "", "text": "SWAN, Chief Judge. This is an action by the executor of a decedent’s estate to recover the sum of $2,603.29, being interest at the rate of 6% per annum from January 18, 1939 to June 19, 1947 on a refund of $5,153.33 received by the executor from the Commissioner of Internal Revenue on the last mentioned date. The plaintiff contends that the refund represents an overpayment of the federal estate tax paid on January 18, 1939 and that section 3771(a) of the Internal Revenue Code requires the payment of interest. The defendant contends that the refund represents an allowance of a credit against the federal estate tax for inheritance taxes paid to the state of New York and that section 813(b) of the Code forbids the payment of interest. . A motion by the defendant for summary judgment was granted upon the ground that the complaint sets forth no claim upon which relief can be granted. The plaintiff has appealed. The material facts are undisputed. They are stated in detail in Judge Goddard’s opinion. A brief summary will suffice here. The federal estate tax return filed in 1939 showed a gross tax liability of $60,270.75. From this the executor deducted $7,067.32 on account of anticipated state inheritance taxes, leaving a net federal estate tax of $53,203.43, which was paid. Thereafter the Commissioner determined and gave notice of a deficiency, and the executor filed a petition to review it. While this proceeding was pending in the Tax Court certain contingent liabilities of the estate were settled thereby reducing the net taxable estate by some $30,000 and making the correct gross estate tax $54,-135.84. This was slightly more than the tax paid in 1939 and pursuant to stipulation between counsel, the Tax Court on November 19, 1946 entered a deficiency judgment of $932.41. In computing the tax in 1946 no credit was deducted for New York inheritance taxes because they had not yet been paid. However, the stipulation provided that the executor would be entitled to credit in the amount of $6,085.74 for state inheritance taxes “upon filing proof of payment of" }, { "docid": "17802858", "title": "", "text": "C. Cls. 638, upon the excess payment of $100,000, shown to be due in respect of the capital stock tax liability when the return was filed September 29,1945. The defendant appears to view the payment by plaintiff of $150,000 estimated capital stock tax in July 1945, solely from the standpoint of the capital stock tax return showing a declared value by plaintiff for its capital stock, but the plaintiff had the right when it filed its capital stock tax return in September 1945, to take into consideration factors affecting its income tax taxable net income which differed materially from those existing in July 1945, when it estimated the value it intended to declare for its capital stock. By September 1945, plaintiff’s estimate as to the amount of its income tax taxable net income for the calendar year 1945 was much less than the estimate made in July of that year. In these circumstances, we think the remittance by the plaintiff to the Collector, in July 1945, constituted a bona fide payment on account of capital stock tax within the meaning of Sections 3770 and 3771 of the Internal Revenue Code, supra, and that it is entitled, under those Sections, to interest on the overpayment of $100,000, subsequently refunded. The Conference Report, U. S. Code Cong. Service, 78th Cong., 1st Sess., p. 262, relating to Section 3770 (c), U. S. Code, added by the Current Tax Payment Act of 1943, stated that the Section was being enacted because some decisions holding that remittances not made incident to a bona fide and orderly discharge of the taxpayers’ actual or reasonably apparent duties had been read by some as meaning that no tax payment resulted if no tax liability actually existed. The Conference Committees considered such a reading as not a correct interpretation of existing law except in those cases where taxpayers merely dumped money as taxes on the Collector by disorderly remittances to him of amounts not computed in pursuance of the actual or reasonably apparent requirement of the Internal Revenue statutes, or not transmitted in accordance with the procedures set up" }, { "docid": "20579011", "title": "", "text": "DENNEY, District Judge. This matter comes before the Court on cross-motions of the parties for partial summary judgment on the following stipulated facts and issues of law. The decedent, Martha H. Hitchcock, died testate on December 15, 1962. Plaintiffs, as co-executors of the estate, timely filed a federal estate tax return with respect to decedent on March 16, 1964, and paid the estate tax shown to be due on the return in the amount of $9,469,302.00. On audit of that return, the Commissioner of Internal Revenue assessed an estate tax deficiency against plaintiffs in the amount of $992,234.10, less an allowable additional credit for state death taxes in the amount of $206,178.40. On April 13, 1967, the assessment was paid by plaintiffs, together with assessed interest thereon of $143,557.46. On March 13, 1967, plaintiffs timely filed a claim for refund with the Internal Revenue Service for estate taxes paid in the amount of $242,986.82. On June 6, 1968, plaintiffs timely filed a supplemental claim for refund of estate taxes paid in the amount of $786,055.70 and the $143,557.46 in interest. Plain tiffs’ claims for refund were disallowed by the Internal Revenue Service and, therefore, the instant suit was filed on May 23, 1969. This Court has jurisdiction over the subject matter of this suit by virtue of 28 U.S.C.A. § 1346(a)(1). The basis for the deficiency in the return of March 16, 1964, was that the Internal Revenue Service determined that the residue of the decedent’s estate remaining after the satisfaction of the general and specific bequests and devises of the decedent, debts, and expenses of administration was not sufficient to pay the federal estate tax and the state death taxes. As originally computed by the Internal Revenue Service, the residue of the decedent’s estate (after allowing for the bequests, legacies, debts and expenses) before the payment of the federal estate tax and state death taxes, was $10,324,413.53. The federal estate tax and state death taxes totalled $12,707,117.09. The Commissioner determined that the excess taxes due would be pro-rata apportioned among all the general and specific bequests of the decedent." }, { "docid": "15247148", "title": "", "text": "26 U.S.C. § 6511(b)(2)(A) from recovering any overpayment made in 1999. III. CONCLUSION For the foregoing reasons, the defendant’s motion for summary judgment is GRANTED and the plaintiffs motion for summary judgment is DENIED. The clerk is directed to enter judgment accordingly. Each party is to bear its own costs. IT IS SO ORDERED. . This community property included a home on Lark Street, certain securities, certain furniture, and jewelry. . This community property included certain securities, real property in Iberville, Louisiana, and certain furniture. . The plaintiff claims that what the accountants provided him with was a \"guesstimate” of the estate tax liability. Pl.’s Mot. Summ. J. 6, ECF No. 23. .The IRS has not been able to provide a copy of any Form 4768 request for extension submitted for Mr. Boensel’s estate and the plaintiff contests whether the plaintiff actually submitted such a form. The plaintiff does not, however, dispute that an extension was granted by the IRS. . 26 U.S.C. § 6511(b)(2) provides, \"[T]he amount of the credit or refund shall not exceed the portion of the tax paid within the period, immediately preceding the filing of the claim, equal to 3 years plus the period of any extension of time for filing the return.” . Now Internal Revenue Code § 6603, enacted in 2004, provides the statutory mechanism for making a deposit of tax: A taxpayer may make a cash deposit with the Secretary which may be used by the Secretary to pay any tax imposed under subtitle A or B or chapter 41, 42, 43, or 44 which has not been assessed at the time of the deposit. Such a deposit shall be made in such manner as the Secretary shall prescribe. I.R.C. § 6603(a). . The court in Huskins acknowledged that the Supreme Court has rejected the notion that all remittances made prior to the actual assessment of a tax liability are deposits, see Huskins, 75 Fed.Cl. at 671 n. 14, but treated this factor as the most important, analyzing other factors, including the plaintiff’s labeling of the remittance as a \"payment,” in the" }, { "docid": "9868589", "title": "", "text": "and consent to assessment and collection of estate tax on said estate in the sum of $109,-917.47 with interest (which resulted from the inclusion of said trust assets and also from other changes in the estate tax schedules as filed) but reserved the right to file a claim for refund on the issue of the propriety of including the assets of said three trusts. 13. On February 20, 1947, plaintiffs, as such executors, paid to the Collector of Internal Revenue at Albany, New York, the sum of $129,261.44, representing the deficiency of $109,917.47, with interest of $19,343.97. A' further deficiency was as-séssed in March 1947 in the amount of $12,166.62, representing the balance of the tentative credit for state estate taxes taken into consideration in arriving at the above-mentioned deficiency, together with interest of $2,183.16. No part of this additional deficiency has been paid by the plaintiffs to the United States or any officer or agency thereof. 14. On April 23, 1947, plaintiff, Louis Lober, as executor of the will of said decedent, duly filed a claim for refund on Form 843 requesting refund of estate tax in the amount of $39,012.19 assessed and collected as aforesaid and interest claimed and collected thereon up to February 19, 1947, in the amount of $6,865.62 or a total of $45,877.81. On or about and under date of September 2, 1947, the Commissioner of Internal Revenue rejected the claim for refund in its entirety. 15. No part of the payment of $129,261.-44 paid on February 20, 1947, as set forth in paragraph 13 hereof, has been refunded to the plaintiffs. 16. If the plaintiffs herein are held entitled to any refund of estate taxes, the parties have agreed that such amount shall be adjusted by credit for state estate and inheritance taxes if plaintiffs establish the payment for credit thereof in accordance with Section 813(h) of the Internal Revenue Code, 26 U.S.C.A. § 813(b). Conclusion of Law Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that, ,as a matter of law, the plaintiffs" }, { "docid": "10947024", "title": "", "text": "MEMORANDUM OPINION DIAMOND, District Judge. Presently before this court is defendant’s motion for summary judgment based upon the plaintiffs’ alleged improper filing of claims for refund and for abatement of interest and penalties on the plaintiffs’ federal income taxes. For the reasons set forth below, the motion will be granted. The pro se plaintiffs in this case seek a refund for overpayments of their federal income taxes for 1972 and 1973. The plaintiffs also request the abatement of interest and penalties for taxable years 1974, 1975 and 1980. Claim For Refund The plaintiffs filed their 1972, 1973, 1974 and 1975 federal income tax returns on September 29, 1980. In 1972 and 1973, the plaintiffs’ tax payments consisted of taxes withheld from plaintiff Robert Graham’s pay. Plaintiffs now seek a refund of $408.97 for 1972 and $1,200.65 for 1973 on the theory that the withheld taxes in those years exceeded their tax liability. In 1981, the Internal Revenue Service denied the plaintiffs’ claim for refunds for taxable years 1972 and 1973. It alleged that the law does not provide for refunding or crediting tax that was paid more than three years before the filing of the claim. Pursuant to 26 U.S.C. § 6511(a), any claim for credit or refund of an overpayment of any tax must be filed within three years from the time the return was filed or two years from the time the tax was paid, whichever of such expires later. Furthermore, 26 U.S.C. § 6511(b)(1) provides that no claim for credit or refund shall be allowed or made after the expiration of the period of limitation prescribed in subsection (a) unless a claim for credit or refund is filed by the taxpayer within such period. Finally, 26 U.S.C. § 6511(b)(2) limits those claims for refunds to those taxes paid within three years before the claim is filed. Section 6511(b)(2) provides in pertinent part: If the claim was filed by the taxpayer during the 3-year period prescribed in subsection (a), the amount of the credit or refund shall not exceed the portion of the tax paid within the period" }, { "docid": "2123659", "title": "", "text": "claim asserted in Count I of its petition in Docket No. 91-70 and Metro-Goldwyn-Mayer’s motion for summary judgment on its claim in Docket No. 191-71 are granted, and defendant’s cross motions for summary judgment are denied. The cases are remanded to the trial commissioner for determination of the amount of recovery pursuant to Rule 131(c). Fruehauf’s motion for summary judgment on the claim asserted in Count II of its petition in Docket No. 91-70 is denied ; defendant’s cross motion on Count II of the petition in that case is granted, and Count II of the petition is dismissed. . The actual facts pertaining to each plaintiff are set out in the appendices. . Regulation § 301.6611 is based on Section 6611 of the Internal Revenue Code of 1954, which states in pertinent part: “§ 6611. Interest on overpayments “(a) Rate. — Interest shall be allowed and paid upon any overpayment in respeet of any internal revenue tax at the rate of 6 percent per annum. “(b) Period.- — Such interest shall be allowed and paid as follows : “(1) Credits. — In the case of a credit, from the date of the overpayment to the due date of the amount against which the credit is taken.” Prior to the Technical Amendments Act of 1958 (P.L. 85-866, 72 Stat. 1606, § 83) § 6611(b)(1) read as follows : “(1) Credits. — In the case of a credit, from the date of the overpayment to the due date of the amount against which the credit is taken, hut if the amount against which the credit is taken is an additional assessment, then to the date of the assessment of that amount.” [Deleted portion italicized.] . Defendant’s brief in No. 191-71 at 12; the quotation is from a table appearing in § 4(3)(b) of the Rec.Proc., 1960-2 Cum. Bull. 942, 957. . 1960-2 Cum.Bull. 942, 951. DAVIS, Judge (concurring): In joining the court’s opinion, I wish to stress — on the question dealt with in Part I — -that the problem arises solely because of the Treasury’s decided lack of clarity in" }, { "docid": "16044937", "title": "", "text": "Internal Revenue assessed a deficiency of $637,053.30. The deficiency resulted from an increase in the value of the gross estate, a reduction in the amount of deductions, and the elimination of the credit for state death duties because \"no evidence of payment has been submitted.” On March 6, 1964, plaintiffs paid the deficiency together with 6 percent interest thereon of $124,958.44. On January 17, 1966, plaintiffs filed a claim for refund. On September 9, 1974, the Commissioner allowed a refund of $200,159.19, consisting of taxes of $188,122.94 and interest of $12,036.25. The Commissioner added to the refund interest of $45,949.73 and paid plaintiffs $246,153.92. While the refund claim was pending, plaintiffs in March 1973 paid $66,964.66 in inheritance taxes to the Commonwealth of Massachusetts. The present suit was filed on June 20, 1977. It seeks $120,837.62, consisting of interest on the credit for state death taxes that had been allowed and refunded and a refund of a portion of the interest that the estate had paid in 1964 but for which a refund had been denied in September 1974. II. A. Section 6611(a) of the Internal Revenue Code of 1954 provides that interest at 6 percent shall be paid \"upon any overpayment in respect of any internal revenue law.” Section 2011(c), however, contains an exception for refunds based upon a credit for state death taxes. Section 2011(a) provides for a credit against the federal estate tax for \"the amount of any estate, inheritance, legacy, or succession taxes actually paid to any State ... in respect of any property included in the gross estate . . . .” Section 2011(c)(lH3) provides special periods of limitation for seeking such a credit and then states: \"Refund based on the credit may (despite the provisions of sections 6511 and 6512) be made if claim therefor is filed within the period above provided. Any such refund shall be made without interest.” The words \"such refund” refer to the \"[r]efund based on the credit” in the prior sentence. The \"credit,” in turn, refers to the credit that section 2011(a) allows for \"the amount of any estate," }, { "docid": "4283508", "title": "", "text": "tax on said estate in the sum of $109,917.47 with interest (which resulted from the inclusion of said trust assets and also from other changes in the estate tax schedules as filed) but reserved the right to file a claim for refund on the issue of the propriety of including the assets of said three trusts. 13. On February 20, 1947, plaintiffs, as such executors, paid to the Collector of Internal Revenue at Albany, New York, the sum of $129,261.44, representing the deficiency of $109,917.47, with interest of $19,343.97. A further deficiency was assessed in March 1947 in the amount of $12,166.62, representing the balance of the tentative credit for state estate taxes taken into consideration in arriving at the above-mentioned deficiency, together with interest of $2,183.16. No part of this additional deficiency has been paid by the plaintiffs to the United States or any officer or agency thereof. 14. On April 23, 1947, plaintiff, Louis Lober, as executor of the will of said decedent, duly filed a claim for refund on Form 843 requesting refund of estate tax in the amount of $39,012.19 assessed and collected as aforesaid and interest claimed and collected thereon up to February 19,1947, in the amount of $6,865.62 or a total of $45,877.81. On or about and under date of September 2, 1947, the Commissioner of Internal Revenue rejected the claim for refund in its entirety. 15. No part of the payment of $129,261.44 paid on February 20, 1947, as set forth in paragraph 13 hereof, has been refunded to the plaintiffs. 16. If the plaintiffs herein are held entitled to any refund of estate taxes, the parties have agreed that such amount shall be adjusted by credit for state estate and inheritance taxes if plaintiffs establish the payment for credit thereof in accordance with Section 813 (b) of the Internal Revenue Code. CONCLUSION OP LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that, as a matter of law, the plaintiffs are not entitled to recover, and the petition is therefore dismissed. Judgment" }, { "docid": "18942365", "title": "", "text": "tax liability, as computed by the Commissioner, of $549,959.11. That letter contained a statement similar to that set out in the 30-day letter with respect to the credit for state inheritance taxes, namely— In the event that evidence of the payment of State, territorial estate, inheritance, legacy, or succession taxes as required by Section 81.9 of Regulations 105, is filed within the ninety-day period, the net deficiency in the amount of $16,062.52 will be assessed. 5. On or about December 10, 1951, the executors filed a petition in the Tax Court of the United States for a redeter-mination of the deficiency in estate tax as set forth by the Commissioner in his notice of deficiency dated September 17, 1951, and referred to in the preceding finding. 6. On or about June 19, 1952, a stipulation between counsel for plaintiffs and the chief counsel for the Internal Revenue Service was filed with the Tax Court of the United States settling the Tax Court proceedings and reading as follows: (a)That the Federal estate tax liability in this proceeding is as shown by the following statements: Estate tax assessed-§461,644.95 Estate tax paid: October 14,1948-§461, 644.95 Estate tax liability_ 382,025.13 Overpayment (Section 912 Internal Revenue Code) _ 79,619. 82 Date deficiency notice mailed: September 17, 1951. Claim for refund filed October 8,1951. (b) That the Court may enter its order that there is an overpayment of estate tax due petitioners in the amount of $79,619.82. (c) That the estate shall be entitled to credit for State inheritance and estate taxes paid as is provided by law upon filing proof of payment of such tax in the manner required by law and Section 81.9 of Regulations 105. 7. On or about June 27, 1.952, the Tax Court entered its decision “that there was an overpayment in estate tax in the amount of $79,619.82”; and on or about October 7, 1952, $79,619.82 with interest in the amount of $19,278.90 was refunded to the plaintiffs. 8. The following is a summary of the adjustments in the computation of the federal estate tax liability which was made by" }, { "docid": "16044938", "title": "", "text": "denied in September 1974. II. A. Section 6611(a) of the Internal Revenue Code of 1954 provides that interest at 6 percent shall be paid \"upon any overpayment in respect of any internal revenue law.” Section 2011(c), however, contains an exception for refunds based upon a credit for state death taxes. Section 2011(a) provides for a credit against the federal estate tax for \"the amount of any estate, inheritance, legacy, or succession taxes actually paid to any State ... in respect of any property included in the gross estate . . . .” Section 2011(c)(lH3) provides special periods of limitation for seeking such a credit and then states: \"Refund based on the credit may (despite the provisions of sections 6511 and 6512) be made if claim therefor is filed within the period above provided. Any such refund shall be made without interest.” The words \"such refund” refer to the \"[r]efund based on the credit” in the prior sentence. The \"credit,” in turn, refers to the credit that section 2011(a) allows for \"the amount of any estate, inheritance, legacy, or succession taxes actually paid” to a state. The question, therefore, is whether any part of the refund of the federal estate tax made to the plaintiffs in September 1974 was \"based on the credit” that the estate received for the death taxes it had paid to the Commonwealth of Massachusetts. The total amount of taxes refunded was $188,122.94. Of this amount, $61,362.28 represented the allowance of deductions previously disallowed. The balance consisted of $59,796 reflecting the death taxes the estate had paid to the Commonwealth of Massachusetts in December 1960 (of which the estate had claimed a credit on the estate tax return of $42,112, which the Commissioner had disallowed in 1963), and $66,964.66 reflecting the payment of additional death taxes to the Commonwealth in 1973 (for which no credit had been claimed on the estate tax return). Thus, $126,760.66 of the refund directly represented and therefore was \"based upon” the credit to which the estate was entitled for the death taxes it had paid to Massachusetts. Under section 2011(c), that portion" }, { "docid": "15247147", "title": "", "text": "Federal Circuit’s holding in VanCanagan, discussed above, the court finds that Revenue Procedure 84-58 does not alter the court’s analysis of the facts and circumstances. D. The Plaintiff is Not Entitled to Recover Any Overpayments Made More Than Three Years Before His Request for a Refund. The plaintiff acknowledges that should the court find, as it has, that the 1999 remittance was a payment of tax, the plaintiff is not entitled to recover any portion of that payment. Indeed, 26 U.S.C. § 6511 provides, “[T]he amount of the credit or refund shall not exceed the portion of the tax paid within the period, immediately preceding the filing of the claim, equal to 3 years plus the period of any extension of time for filing the return.” 26 U.S.C. § 6511(b)(2)(A). It is undisputed that the plaintiff filed the estate tax return on which he claimed an overpayment and sought a refund on September 6, 2006, well more than three years after his 1999 payment. See Def.’s Ex. 2. As such, the plaintiff is barred by 26 U.S.C. § 6511(b)(2)(A) from recovering any overpayment made in 1999. III. CONCLUSION For the foregoing reasons, the defendant’s motion for summary judgment is GRANTED and the plaintiffs motion for summary judgment is DENIED. The clerk is directed to enter judgment accordingly. Each party is to bear its own costs. IT IS SO ORDERED. . This community property included a home on Lark Street, certain securities, certain furniture, and jewelry. . This community property included certain securities, real property in Iberville, Louisiana, and certain furniture. . The plaintiff claims that what the accountants provided him with was a \"guesstimate” of the estate tax liability. Pl.’s Mot. Summ. J. 6, ECF No. 23. .The IRS has not been able to provide a copy of any Form 4768 request for extension submitted for Mr. Boensel’s estate and the plaintiff contests whether the plaintiff actually submitted such a form. The plaintiff does not, however, dispute that an extension was granted by the IRS. . 26 U.S.C. § 6511(b)(2) provides, \"[T]he amount of the credit or refund shall not" }, { "docid": "3097909", "title": "", "text": "the former that it is paid to be held in escrow and the latter that it is paid to discharge an existing obligation.\" Id. at 255 (emphasis in original). See also Qureshi v. United States Internal Revenue Service, 75 F.3d 494, 496 (9th Cir.1996) (citations omitted) (\"A remittance or amount collected is recognized as a 'payment' to the IRS when it discharges a definite obligation”). . The Supreme Court in Baral further noted: \"We need not address the proper treatment under § 6511 of remittances that, unlike withholding and estimated income tax, are not governed by a ‘deemed paid’ provision akin to § 6513(b). Such remittances might include remittances of estimated estate tax, as in Rosenman, or remittances of any sort of tax by a taxpayer under audit in order to stop the running of interest and penalties, [citation omitted]. In the latter situation, the taxpayer will often desire treatment of the remittance as a deposit — • even if this means forfeiting the right to interest on an overpayment' — in order to preserve jurisdiction in the Tax Court, which depends on the existence of a deficiency, 26 U.S.C. § 6213 (1994 ed. and Supp. Ill), a deficiency that would be wiped out by treatment of the remittance as a payment. We note that the Service has promulgated procedures to govern classification of a remittance as a deposit or payment in this context. See Rev. Proc. 84-58, 1984-2 Cum. Bull. 501.” Id., 528 U.S. at 439, 120 S.Ct. at 1011, £n. 11. . In rejecting that argument, the court in Gouin stated: \"Plaintiffs' 'deposit' theory is precluded by the plain limitations imposed by the statute [26 U.S.C. § 6511(b)(2)(A)] as well as by sound public policy. If taxpayers could effectively 'deposit' overpayments with the I.R.S. and make 'withdrawals' at their pleasure, the government's interest in the uniform and orderly administration of the tax laws would be severely undercut. The limitations imposed by section 6511 exist, in part, to prevent taxpayers from using the I.R.S. as a bank. The Gouins' claim for credit or refund is little more than an" }, { "docid": "6876658", "title": "", "text": "the executors of' the Satterlee estate, filed the estate tax return they claimed credit for the amount of tax shown to be due thereon, less 80 per cent of the basic tax, which they deducted as their estimate of the amount of State inheritance, etc., taxes which the State would be required to' pay. The Commissioner made a redeter-mination of the tax and asserted a deficiency. The executors then filed a petition in the Tax Court of the United States for a redetermination of the deficiency. Thereafter, counsel for the plaintiffs and the Chief Counsel of the Internal Revenue Service entered into a stipulation, upon the basis of which the Tax Court entered its determination that there had been an overpayment of estate taxes in the amount of $79,619.82. This amount was refunded to the executors on October 7, 1952, with interest in the amount of $19,278.90. The stipulation entered in the Tax Court was based on adjustments in the computation of the Federal tax liability, which showed total estate tax liability of $382,025.13. Since taxes in the amount of $461,644.95 had been assessed and paid, the computation showed that plaintiffs were entitled to a refund of $79,619.82. In the computation of the estate tax liability, upon the basis of which the stipulation was entered into, no credit was given for State inheritance, etc., taxes, but the summary showed that there was an allowable credit on this account of $46,570.43, and it stated: “In the event satisfactory evidence is submitted showing the payment of $46,570.43, the net estate liability will be $335,454.70, resulting in an overassessment of $126,190.25.” Later, when payment was made of the State inheritance taxes, this amount of $46,570.43 was refunded. It is plain that it was refunded solely on account of the allowance of the deduction of State inheritance taxes. The statute very plainly says that no interest is allowable on account of such a refund. In our opinion in Fahnestock v. United States, supra, we stated that the reduction in estate tax liability resulted from the inclusion in the taxable estate of items which it" }, { "docid": "16908288", "title": "", "text": "of July 16,1957 is the date on which plaintiff paid its excessive profits for the year 1953, and October 15,1965 is the date on which plaintiff paid its excessive profits for the year 1954. The Internal Revenue Service did not refund the $23,780.10 assessed interest which had been paid on account of the tax deficiency asserted against plaintiff for 1954. No statutory interest was allowed, moreover, for tbe period from tbe respective dates of payment of 1954 and 1955 taxes, to tbe respective dates of payment of 1958 and 1954 renegotiated excessive profits. These amounts of assessed and statutory interest retained by tbe government constitute tbe basis of tbe present suit. Section 6611 provides with respect to interest on overpay-ments, in parts pertinent to tbis suit, that: (a) Rate. — Interest shall be allowed and paid upon any overpayment in respect of any internal revenue tax at tbe rate of 6 percent per annum. (b) Period. — Such interest shall be allowed and paid as follows: * * # * * (2) Refunds. — In tbe case of a refund, from the date of the overpayment to a date (to be determined by tbe Secretary or bis delegate) preceding tbe date of tbe refund check by not more than 30 days, whether or not such refund check is accepted by the taxpayer after tender of such check to the taxpayer. The acceptance of such check shall be without prejudice to any right of the taxpayer to claim any additional overpayment and interest thereon. The applicable Treasury Regulations specify, moreover, with respect to the computation of interest on an overpayment, that: * * * [T]he dates of overpayment of any tax are the date of payment of the first amount which (when added to previous payments) is in excess of the tax liability * * * and the rate of payment of all amounts subsequently paid with respect to such tax liability. Treasury Regulations on Procedure and Administration (Internal Revenue Code of 1954), § 301.6611-1 (b). Plaintiff’s theory for recovery is that absent some specific statutory exception to the above-quoted Code" }, { "docid": "13273594", "title": "", "text": "to the Collector, in July 1945, constituted a bona fide payment on account of capital stock tax within the meaning of Sections 3770 and 3771 of the Internal Revenue Code, supra, and that it is entitled, under those Sections, to interest on the overpayment of $100,000, subsequently refunded. The Conference Report, U.S. Code Cong. Service, 78th Cong., 1st Sess., p. 262, relating to Section 3770(c), U.S. Code, added by the Current Tax Payment Act of 1943, stated that the Section was being enacted because some decisions holding that remittances not made incident to a bona fide and orderly discharge of the taxpayers’ actual or reasonably apparent duties had been read by some as meaning that no tax payment resulted if no tax liability actually existed. The Conference Committees considered such a reading as not a correct interpretation of existing law except in those cases where taxpayers merely dumped money as taxes on the Collector by disorderly remittances to him of amounts not computed in pursuance of the actual or reasonably apparent requirement of the Internal Revenue statutes, or not transmitted in accordance with the procedures set up by the statutes, or by other abuses of orderly tax administration. Upon the facts in this case, we find that the remittance by plaintiff of the $150,000, in July 1945, was made incident to a bona fide and orderly discharge of plaintiff’s reasonably apparent duties in connection with plaintiff’s estimate made in good faith at the time, as to what its capital stock tax liability would probably be. Judgment for the amount of interest due will be entered upon the filing by the parties of a computation showing the exact amount thereof. It is so ordered. JONES, Chief Judge, and HOWELL, MADDEN, and WHITAKER, Judges, concur. . House Conference Report No. 10, 78th Cong., 1st Sess., p. 48." }, { "docid": "17802859", "title": "", "text": "stock tax within the meaning of Sections 3770 and 3771 of the Internal Revenue Code, supra, and that it is entitled, under those Sections, to interest on the overpayment of $100,000, subsequently refunded. The Conference Report, U. S. Code Cong. Service, 78th Cong., 1st Sess., p. 262, relating to Section 3770 (c), U. S. Code, added by the Current Tax Payment Act of 1943, stated that the Section was being enacted because some decisions holding that remittances not made incident to a bona fide and orderly discharge of the taxpayers’ actual or reasonably apparent duties had been read by some as meaning that no tax payment resulted if no tax liability actually existed. The Conference Committees considered such a reading as not a correct interpretation of existing law except in those cases where taxpayers merely dumped money as taxes on the Collector by disorderly remittances to him of amounts not computed in pursuance of the actual or reasonably apparent requirement of the Internal Revenue statutes, or not transmitted in accordance with the procedures set up by the statutes, or by other abuses of orderly tax administration. Upon the facts in this case, we find that the remittance by plaintiff of the $150,000, in July 1945, was made incident to a bona fide and orderly discharge of plaintiff’s reasonably apparent duties in connection with plaintiff’s estimate made in good faith at the time, as to what its capital stock tax liability would probably be. Judgment for the amount of interest due will be entered upon the filing by the parties of a computation showing the exact amount thereof. It is so ordered. Howell, Judge; Madden, Judge; Whitaker, Judge; and Jones, Chief Judge, concur. On October 2, 1951, on a stipulation by the parties, judgment was entered for $2,164.38. House Conference Report No. 10, 78th Cong., 1st Sess., p. 48." }, { "docid": "6876663", "title": "", "text": "Commissioner, of $549,959.11. That letter contained a statement similar to that set out in the 30-day letter with respect to the credit for state inheritance taxes, namely— “In the event that evidence of the payment of State, territorial estate, inheritance, legacy, or succession taxes as required by Section 81.9 of Regulations 105, is filed within the ninety-day period, the net deficiency in the amount of $16,062.52 will be assessed.” 5. On or about December 10, 1951, the executors filed a petition in the Tax Court of the United States for a rede-termination of the deficiency in estate tax as set forth by the Commissioner in his notice of deficiency dated September 17, 1951, and referred to in the preceding finding. 6. On or about June 19, 1952, a stipulation between counsel for plaintiffs and the chief counsel for the Internal Revenue Service was filed with the Tax Court of the United States settling the Tax Court proceedings and reading as follows: “(a) That the Federal estate tax liability in this proceeding is as shown by the following statements: Estate tax assessed ....................... $461,644.95 Estate tax paid: October 14, 1948 ....................$461,644.95 Estate tax liability.................................. 382,025.13 Overpayment (Section 912 Internal Revenue Code)...... 79,619.82 Date deficiency notice mailed: September 17,1951. ■ Claim for refund filed October 8,1951. “(b) That the Court may enter its order that there is an overpayment of estate tax due petitioners in the amount of $79,619.82. “(c) That the estate shall be entitled to credit for State inheritance and estate taxes paid as is provided by law upon filing proof of payment of such tax in the manner required by law and Section 81.9 of Regulations 105.” 7. On or about June 27, 1952, the Tax Court entered its decision “that there was an overpayment in estate tax in the amount of $79,619.82”; and on or about October 7, 1952, $79,619.82 with interest in the amount of $19,278.90 was refunded to the plaintiffs. 8. The following is a summary of the adjustments in the computation of the federal estate tax liability which was made by the Internal Revenue Service" }, { "docid": "9331483", "title": "", "text": "was invalid because the assessment of February 22, 1971 had been abated. Only the May 3, 1976 levy was based solely on the February 22, 1971 penalty assessment. Even if there had been a bona fide dispute as to the validity of that levy, there is no bona fide dispute with respect to the subsequent levies. Although there are disputed questions of fact, none of them is material to the outcome of the litigation; therefore I am not precluded from issuing summary judgment on the plaintiff’s “counterclaim in reply.” See, Kiess v. Eason, 442 F.2d 712 (7th Cir. 1971). Plaintiff’s motion for summary judgment is granted against the defendant Loeb, Rhoades & Co. for the penalty authorized by 26 U.S.C. § 6332(c)(2) in an amount to be separately determined and fixed by me on proper papers. Plaintiff’s claim under 6332(c)(1) is now moot and is hereby dismissed. . Although the refund to Charles H. Augspurger was based on a penalty assessment, 26 U.S.C. § 6659(a)(2) states that any reference to “tax” shall be deemed to encompass a penalty. . Defendant Augspurger originally asked for judgment in the amount of $6,730.86. This amount represents the dividends that accrued on Charles H. Augspurger’s investment with Loeb and that were paid over to the Internal Revenue Service pursuant to the levies served on Loeb. Defendant Augspurger later requested $856.58, the amount turned over to the Internal Revenue Service as a result of the first levy. . The H. R. Weissberg Corporation was put into the hands of a receiver, a Mr. Patton, December 19, 1967. He was discharged April 15, 1968. . At one point defendant Augspurger claimed that the penalty assessment had been paid, citing the Request for Adjustment form filled out by the Manhattan District Revenue officer. The only reference to payment of taxes is to the withholding taxes owed by the H. R. Weiss-berg Corp. This statement is based on hearsay set forth by Mr. Augspurger in his May 29, 1974 claim requesting an abatement of the penalty. . The statement attached to the claim filled out by Mr. Augspurger" }, { "docid": "3097908", "title": "", "text": "rather than a \"payment” of tax. It is well settled that a taxpayer is not entitled to receive statutory interest on a tax \"deposit,” whereas he is entitled to receive statutory interest on a tax “payment.” See Becker Brothers, Inc. v. United States, 61 A.F.T.R.2d 88-1146, 88-1151(P-H), 1988 WL 75234 (C.D.Ill.1988); 26 U.S.C. § 6601(a) (\"Interest shall be allowed and paid upon any overpayment in respect of any internal revenue tax at the overpayment rate established under section 6621”) (emphasis supplied). . There is a plain distinction between a \"deposit” and a \"payment” of taxes. Whereas a \"deposit” represents a remittance to the IRS for a contingent, future liability which may or may not become due, a \"payment” of taxes represents a remittance \"in response to an assessment or to discharge all or part of an existing tax liability * * *.” Blatt v. United States, 34 F.3d 252, 254-55 (4th Cir.1994) (citations omitted). That is, \"the essence of the distinction between a deposit and a payment of taxes is derived from the characteristic about the former that it is paid to be held in escrow and the latter that it is paid to discharge an existing obligation.\" Id. at 255 (emphasis in original). See also Qureshi v. United States Internal Revenue Service, 75 F.3d 494, 496 (9th Cir.1996) (citations omitted) (\"A remittance or amount collected is recognized as a 'payment' to the IRS when it discharges a definite obligation”). . The Supreme Court in Baral further noted: \"We need not address the proper treatment under § 6511 of remittances that, unlike withholding and estimated income tax, are not governed by a ‘deemed paid’ provision akin to § 6513(b). Such remittances might include remittances of estimated estate tax, as in Rosenman, or remittances of any sort of tax by a taxpayer under audit in order to stop the running of interest and penalties, [citation omitted]. In the latter situation, the taxpayer will often desire treatment of the remittance as a deposit — • even if this means forfeiting the right to interest on an overpayment' — in order to preserve" } ]

[ { "docid": "14156071", "title": "", "text": "level of 36, placing his advisory Guidelines range between 188 and 235 months. The District Court then allowed counsel for both sides to argue for the appropriate sentence based on the § 3553(a) factors. During that time, Batista’s counsel focused heavily on the fact that Batista’s co-conspirators had received sentences of 63 and 27 months respectively. In its final decision, the District Court found that the disparity between Batista’s sentence and those of his co-conspirators was warranted and that a sentence of 188 months was appropriate under the circumstances. Batista timely filed this appeal. II. The District Court exercised jurisdiction over this case pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review over a district court’s interpretation of the Guidelines, reviewing its factual determinations for clear error. United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007) (en banc). We review a district court’s ultimate determination of a sentence for reasonableness. United States v. Cooper, 437 F.3d 324, 326-27 (3d Cir.2006). III. Batista’s primary contentions on appeal center on the District Court’s determination of his base offense level under the Sentencing Guidelines. We will address each alleged error individually. A. Under the United States Sentencing Guidelines, a district court may enhance a defendant’s base offense level by two levels if it determines that the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.... ” U.S. Sentencing Guidelines Manual § 3C1.1. On appeal, Batista argues that the District Court improperly applied this enhancement because Batista was merely “exploring a potential defense or mitigation” when he was being evaluated. However, the District Court found otherwise, indicating that Batista knowingly feigned mental illness and shared his intent to use this plan with Arias-Campos. We review such factual findings for clear error, Grier, 475 F.3d at 570, overturning them only where “ ‘the reviewing [body] on the entire evidence is left with the definite and firm conviction that a" } ]

[ { "docid": "22968734", "title": "", "text": "thinking of the framers of the guidelines.”); and (4) the claim that the guideline range did not accurately reflect the seriousness of the offense, see JA 384 (noting that the séntencing range did not overstate the seriousness of the offense). All of this left Davis with a guidelines range of 33 to 41 months. “Normally,” the court noted,- it “would be inclined to sentence in the middle or upper reaches of the guideline range,” but it decided to impose a 33-month sentence on each of the two counts (to run concurrently) and 5 years of supervised release. JA 394-95. In choosing the low end of the guidelines range, the court relied on Davis’s age at the time (68) and the delay between the bank fraud and sentencing (12 years). The court did not impose restitution because Davis could not afford it. On appeal, this court affirmed Davis’s conviction but remanded the case for re-sentencing. As to the sentencing aspect of its decision, the court reasoned that the district court had calculated the sentence under the 2002 Guidelines Manual instead of the more-lenient version in effect when Davis committed the offense (the 1991 version), and that the court’s imposition of a sentence under mandatory guidelines violated United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See Davis, 397 F.3d at 350-52. On April 29, 2005, the district court re-sentenced Davis. Using the 1991 version of the guidelines, the district court set Davis’s base offense level at 6, then applied an 11-level enhancement due to the amount of the loss, see U.S.S.G. § 2F1.1 (1991), then added a 2-level enhancement for more-than-minimal planning in committing the offense, see id. § 2F1.1(b)(2). After concluding that Davis did not deserve a downward departure, the court determined that his criminal history category (I) and his offense level (19) generated an advisory guidelines range of 30 to 37 months. See JA 408. The court then applied the factors listed in 18 U.S.C. § 3553(a) in exercising its independent judgment whether to deviate from the guidelines range. It first considered Davis’s characteristics" }, { "docid": "22537524", "title": "", "text": "and sale of a controlled substance, two points each for two separate offenses involving driving with a suspended license, three points stemming from a burglary, one point for an assault, and one point for driving under the influence. See U.S.S.G. § 4Al.l(a)-(c) (2004). In addition, because the federal firearm violation was committed within two years of Mr. Kristi’s release from custody on one of the driving offenses, the PSR recommended that two more points be added to Mr. Kristi’s criminal history score. See U.S.S.G. § 4Al.l(e). These fourteen points put Mr. Kristi in criminal history category VI, which, when combined with an offense level of 10, resulted in a Guidelines range of 24-30 months’ imprisonment. On January 28, 2005, two weeks after the Supreme Court’s decision in Booker, the district court adopted the recommendation of the PSR over Mr. Kristi’s objection and sentenced him to 28 months’ incarceration. On appeal, Mr. Kristi argues that the district court erred in determining the applicable Guidelines range because the controlled substance offense warranted only one, rather than three, criminal history points. He also argues that he should only have been assigned one point, rather than two, for one of his convictions for driving on a suspended license. Finally, Mr. Kristi argues that the district court erred in applying the § 4Al.l(e) enhancement because the predicate offense — the aforementioned driving offense — did not involve a sentence of imprisonment counted under U.S.S.G. § 4Al.l(a) or (b). Had the district court properly considered these prior convictions, Mr. Kristi contends, he would have had a criminal history score of IV, and the applicable Guidelines range would have been 15-21 months. Mr. Kristi maintains that this error renders his sentence unreasonable in light of Booker and his case should therefore be remanded. II. DISCUSSION A. Standard of Review After United States v. Booker In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court held that the mandatory application of the Guidelines to judge-found facts (other than a prior conviction) violates the Sixth Amendment. 125 S.Ct. at 749-50. Rather" }, { "docid": "23190966", "title": "", "text": "he possessed stolen firearms and agreeing to forfeit all his interest in the guns. The parties agreed that U.S.S.G. § 2K2.1(a)(7) established a base offense level of 12. The district court applied two two-level increases because six firearms were involved, U.S.S.G. § 2K2.1(b)(l)(A), and because Hadash abused a position of trust when he stole mail while working as a postal service employee. U.S.S.G. § 3B1.3. Because of his acceptance of responsibility, Hadash received a three-level reduction. U.S.S.G. § 3E1.1. This calculation resulted in an offense level of 13, absent additional departures, with a range of 12 to 18 months’ imprisonment for a defendant with a criminal history category of I. The government argued that no other departures were warranted. The district court, however, applied a six-level downward guideline adjustment for collection of firearms, U.S.S.G. § 2K2.1(b)(2), acknowledging that it was utilizing “a broad definition to the term [‘collection’].” The district court stated in the alternative, however, that if the collections provision could not be, appropriately applied, it would nevertheless depart to precisely the same range. It cited Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), implying that it would find that there were mitigating circumstances that were not adequately taken into consideration by the guidelines calculation. Id. at 94, 116 S.Ct. 2035; see also U.S.S.G. § 5K2.0. The six-level reduction resulted in an offense level of seven, with a range of 0 to 6 months’ imprisonment. II. Although the Supreme Court changed the applicability of the sentencing guidelines from mandatory to advisory in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we continue to review de novo challenges to the applicability of the guidelines. See United States v. Mathijssen, 406 F.3d 496 (8th Cir.2005). We also continue to review factual findings made by the district court for clear error. United States v. Mashek, 406 F.3d 1012 (8th Cir.2005). Although Booker provided that we will review the ultimate sentence, for unreasonableness, the correct guidelines range is still “the critical starting point for the imposition of .a sentence.” Id. at" }, { "docid": "22537525", "title": "", "text": "criminal history points. He also argues that he should only have been assigned one point, rather than two, for one of his convictions for driving on a suspended license. Finally, Mr. Kristi argues that the district court erred in applying the § 4Al.l(e) enhancement because the predicate offense — the aforementioned driving offense — did not involve a sentence of imprisonment counted under U.S.S.G. § 4Al.l(a) or (b). Had the district court properly considered these prior convictions, Mr. Kristi contends, he would have had a criminal history score of IV, and the applicable Guidelines range would have been 15-21 months. Mr. Kristi maintains that this error renders his sentence unreasonable in light of Booker and his case should therefore be remanded. II. DISCUSSION A. Standard of Review After United States v. Booker In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court held that the mandatory application of the Guidelines to judge-found facts (other than a prior conviction) violates the Sixth Amendment. 125 S.Ct. at 749-50. Rather than declare the Guidelines unconstitutional, however, the Court excised the provision of the federal sentencing statute that made the Guidelines mandatory, 18 U.S.C. § 3553(b)(1), effectively making the Guidelines advisory. The Court also excised 18 U.S.C. § 3742(e), which set forth the standard of review on appeal, and held that the proper standard of review for sentences imposed post-Booker is “reasonableness.” See Booker, 125.S.Ct. at 764-66. Given that this court is considering for the first time a sentence imposed after Booker, we now delineate the contours of this newly pronounced standard of review. See United States v. Souser, 405 F.3d 1162, 1165 (10th Cir.2005) (declining to review for reasonableness when the district court had not sentenced the defendant under the new, discretionary regime). Reasonableness review is guided by the factors set forth in 18 U.S.C. § 3553(a), see Booker, 125 S.Ct. at 766, which include the nature of the offense and characteristics of the defendant, as well as the need for the sentence to reflect the seriousness of the crime, to provide adequate deterrence, to" }, { "docid": "21932886", "title": "", "text": "district court did not abuse its discretion in denying Appellants’ motions. Rather, the district court carefully rehabilitated and instructed the reconstituted jury, and there is no evidence that the extrinsic evidence influenced the jury in any way. See United States v. Kopituk, 690 F.2d 1289, 1307-08 (11th Cir.1982) (affirming the district court’s decision to dismiss a juror and replace her with an alternate after five days of deliberation). IV. APPEAL OF SENTENCES Appellants contend that resentencing is required because their sentences violate United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We first review Appellants’ sentences, and then the Booker issues. A. Sentences Appellants Ronda, Agüero, Beguiristain and Castello — those Appellants convicted in the first trial — were sentenced at a hearing held on October 9, 2003. The Presentence Investigation Reports (“PSIs”) for all four Appellants assigned them a base offense level of 12 under U.S.S.G. § 2J1.2(a). Appellants Ronda and Castello were assigned no enhancements or reductions; their offense levels of 12 and criminal history categories of I produced a Guidelines range of 10 to 16 months’ imprisonment. While the PSIs also assigned a base offense level of 12 to Appellants Agüero and Beguiristain, their PSIs recommended several adjustments to that base offense level. Appellant Aguero’s PSI recommended a total adjusted offense level of 19, which included: (1) a two-level enhancement for playing an organizing role in the criminal activity, see U.S.S.G. § 3Bl.l(c); (2) a two-level enhancement for abusing a position of public trust in a manner that significantly facilitated the commission or concealment of the offense, see U.S.S.G. § 3B1.3; and (3) a three-level increase pursuant to the multiple count Guidelines, see U.S.S.G. §§ 3D1.1 through 3D1.5. Appellant Aguero’s total adjusted offense level of 19 and his criminal history category of I produced a Guidelines range of 30 to 37 months’ imprisonment. Appellant Beguiristain’s PSI recommended a total adjusted offense level of 17. In addition to Beguiristain’s base offense level of 12, the PSI added: (1) a two-level enhancement for abusing a position of public trust in a manner that significantly" }, { "docid": "22466114", "title": "", "text": "... a defendant with a criminal pattern like this is more analogic [sic] to an offender criminal history 6, and the [c]ourt will use a criminal history category 3 as the conservative measure of the criminal conduct that is not adequately captured by the advisory guidelines.” (J.A. 169.) Next, the district court applied a one-level upward departure to Grubbs’ offense level. It did so because “the offense level failed to capture the vast majority of the defendant’s criminal behavior,” and “[g]iven the multiple account grouping guideline [provisions], any additional victims or criminal acts would not affect the guideline range.” (J.A. 169.) It noted that the modest extent of each departure was an “act of restraint” on its part. (J.A. 170.) Under the adjusted Guidelines calculation, using an offense level of 35, and a criminal history category of 3, Grubbs’ sentencing range was 210 to 262 months’ imprisonment. The district court then analyzed the § 3553(a) factors in light of Grubbs’ conduct, and sentenced Grubbs to 240 months’ imprisonment. Grubbs noted a timely appeal. We have jurisdiction under 28 U.S.C. § 1291 (2000). II. A. Grubbs first contends that his Sixth Amendment rights were violated because the district court relied on uncharged conduct to increase his sentence above that determined under the initial Guidelines calculation. Grubbs asserts that based solely on his twelve counts of conviction, his sentence of 240 months would be unreasonable. He maintains that a sentence of this length can only be considered reasonable by relying on the district court’s conclusion that Grubbs had committed additional offenses for which he had not been convicted. Citing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Grubbs reasons that the substantial increase in his sentence due to judge-found facts on uncharged conduct violates the Sixth Amendment’s jury trial guarantee. Because Grubbs preserved his Sixth Amendment challenge by raising this issue in the district court, this court’s review is de novo. See United States v. Hall, 551 F.3d 257, 266 (4th Cir.2009). Grubbs’ argument is nullified by clear Supreme Court and Fourth Circuit prece dent holding" }, { "docid": "21697115", "title": "", "text": "2005, shortly after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the defendants were sentenced in separate proceedings to concurrent sentences of seventy-two months’ imprisonment for money laundering and sixty months for mail fraud, and three years supervised release. They were also ordered to pay over $1,200,000 in restitution. The defendants now appeal their sentences. II. ANALYSIS This court reviews post-Booker criminal sentences for unreasonableness. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621. If the sentence imposed falls within the properly calculated range prescribed by the Guidelines, a rebuttable presumption of reasonableness applies to that sentence. United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). If the sentence imposed falls outside of the applicable range, the district court should explain the reasons for its departure from the Guidelines’ now-advisory range. United States v. Dean, 414 F.3d 725, 727-28 (7th Cir.2005). Thus, a crucial predicate to our review for reasonableness is the district court’s proper — and explicit — determination of the total offense level and corresponding sentencing range under the Guidelines. United States v. LaShay, 417 F.3d 715, 719 (7th Cir.2005). Here, thé district court did not calculate the total offense level for either defendant with sufficient precision for this court to conduct a proper review for reasonableness. Specifically, both the presentencing report (“PSR”) and the government recommended a total offense level of 29 under the Guidelines for each of the defendants. Based on the defendants’ criminal history level of I, the sentencing guideline range for this offense level was 87 to 108 months. The defendants filed numerous objections to the PSR, arguing, among other things, that the intended loss was $1.2 million, rather than the $16 million-plus amount recommended in the PSR. The defendants also objected to the PSR’s recommendation for upward adjustments due to “sophisticated means” and “role in offense” factors. U.S.S.G. §§ 2S1.1(b)(3), 3B1.1 (2004). Therefore, at the sentencing hearing, the defendants argued that the proper total offense level was 19, or perhaps 21, rather than 29. According to their calculations, the recommended" }, { "docid": "21307344", "title": "", "text": "of the vehicle. A grand jury returned an indictment against Mr. Garcia-Lara, charging him with one count of possession with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1). Mr. Garcia-Lara pleaded guilty to the charge without a plea agreement on February 17, 2005. The U.S. Probation Office prepared a Presentence Investigation Report (“PSR”) in anticipation of Mr. Garcia-Lara’s sentencing. The PSR reported a criminal history category of V and an initial base offense level of 32. Because two of Mr. Garcia-Lara’s prior convictions were for controlled substance offenses as defined in U.S.S.G. § 4B 1.2(b), the PSR applied the “career offender” provision of the Guidelines, U.S.S.G. § 4Bl.l(b)(A), raising his criminal history category to VI and his base offense level to 37. After applying a three-level reduction to the offense level for acceptance of responsibility, the PSR concluded Mr. Garcia-Lara had a total offense level of 34 and a criminal history category of VI, resulting in an advisory Guidelines sentence of 262 to 327 months’ imprisonment. Applying 18 U.S.C. § 3553(a), the District Court concluded that a sentence of 262 months, at the bottom of the advisory Guidelines range, over-represented Mr. Garcia-Lara’s criminal history, resulting in a sentence greater than necessary to accomplish the goals of § 3553(a). Accordingly, the court sentenced Mr. Garcia-Lara as if the career offender enhancement did not apply. Noting that the advisory Guidelines sentence for a non-career offender would be 140 to 175 months’ imprisonment, the District Court sentenced Mr. Garcia-Lara to 140 months. II. DISCUSSION A. Post-Rita Sentencing Review Since United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), this Court has repeatedly stated that we review a district court’s sentencing determination for reasonableness, which is guided by the statutory factors delineated in 18 U.S.C. § 3553(a). See, e.g., United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir.2006). In the Supreme Court’s recently issued opinion Rita v. United States, — U.S.-, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), the majority referred to reasonableness review as an “abuse of discretion” standard." }, { "docid": "22472246", "title": "", "text": "admitted these facts, and Paragraph 9 shows him to be the leader. He’s the one that enlisted others to help him in furtherance of the offense.” (Id. at 79). The district court then adopted the PSI’s factual findings, calling them “undisputed factual statements.” (Id.) He applied the Guidelines as set forth in the PSI, which yielded a sentencing range of 70 to 87 months, and sentenced Martinez to 78 months’ imprisonment. In imposing the sentence, the district court observed that it had considered the 18 U.S.C. § 3553 sentencing factors and found that Martinez’s sentence was “sufficient but not greater than necessary to comply with the statutory purposes of sentencing.” (Hr’g Trans. Sentencing 83, June 26, 2008). The district court also imposed a five year term of supervised release and entered a money forfeiture judgment in the amount of $110,000. This timely appeal followed. II. We review a district court’s determination that a defendant is subject to a Section 3B1.1 role enhancement as an organizer or leader for clear error. United States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir.2005). Although the Sentencing Guidelines are no longer mandatory, United States v. Booker, 543 U.S. 220, 249-51, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court is still required to consult, consider, and correctly calculate the guideline range when imposing a sentence, United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.2005). See also United States v. Pugh, 515 F.3d 1179, 1189-90 (11th Cir.2008) (explaining that the district court committed reversible error having improperly calculated the applicable guideline range). Accordingly, if the district court erred in calculating the guideline range while imposing a sentence, we may vacate the defendant’s sentence and remand the case for re-sentencing. Martinez challenges the district court’s imposition of a leadership role enhancement to his offense level calculation under the Sentencing Guidelines. Pursuant to Section 3Bl.l(a), a district court must increase a defendant’s offense level by four levels “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G. § 3Bl.l(a). The commentary of" }, { "docid": "22169115", "title": "", "text": "his Count 1 total offense level based on racketeering acts it considered pursuant to § 1B1.3. A conviction for violating RICO carries with it a statutory maximum sentence of 240 months. 18 U.S.C. § 1963(a). A guilty verdict, then, regardless of its form, subjects the defendant to a sentence at or below the maximum. It is up to the district court to determine the appropriate sentence. To do so, it must engage in two intertwined analyses. First, it must determine the Guidelines sentencing range. United States v. Booker, 543 U.S. 220, 259-60, 125 S.Ct. 738, 764-65, 160 L.Ed.2d 621 (2005). Next, the court must consider the sentencing factors, or objectives, found in 18 U.S.C. § 3553(a). Id. These two steps satisfy the court’s procedural duties. Since the Guidelines sentencing range is non-binding post-Booker, the court is free, after considering the § 3553(a) factors, to impose a sentence above or below that range. United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir.2005). All that is required is that the sentence be substantively reasonable, id., meaning that, in part, it is proportional to such broad notions as “the nature and circumstances of the offense and history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1). There is not, and has never been, a requirement that the district court make its sentencing decision based solely on conduct the jury found beyond a reasonable doubt. Understood in this way, the Sentencing Guidelines represent but one means of settling on a substantively reasonable sentence commensurate with the seriousness of the crime. For that reason, we have repeatedly held that, after identifying the guideline that applies to the offense of conviction and the base offense level, the district court may find all other facts relevant to Specific Offense Characteristics and Adjustments by a preponderance of the evidence. United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir.2006). And in this case, that is exactly what the district court did. As we have indicated, § 2E1.1, the RICO guideline, provided the appropriate structure for determining the base offense level of Bradley, Jr.’s Count 1 sentence. That" }, { "docid": "11728198", "title": "", "text": "questioning. When Valerie Hill indicated that the men should surrender themselves, Larrabee and Hill laughed at her and convinced her to drive them approximately 300 miles to Fort Tot-ten, North Dakota. Larrabee and Hill were arrested in Fort Totten on February 20. Using the version of the sentencing guidelines in effect at the time Larrabee committed the offense, see U.S.S.G. § lBl.ll(b)(l), the United States Proba tion Office calculated a total offense level of 30, taking into account a base offense level of 33 for violation of 18 U.S.C. § 1111, see U.S.S.G. § 2A1.2 (2003), and a three-level downward adjustment for acceptance of responsibility, see U.S.S.G. § 3E1.1 (2003). Larrabee’s criminal history placed him in criminal history category Y. The corresponding guidelines range was 151 to 188 months’ imprisonment. During Larrabee’s post -Blakely, pr e-Booker sentencing, the district court found that Lar-rabee obstructed justice and stated that, if the sentencing guidelines were applicable, the total offense level would be 32 with a corresponding range of 188 to 235 months. The district court then noted that the guidelines were unconstitutional and, after consideration of the relevant factors, sentenced Larrabee to 363 months’ imprisonment. II. DISCUSSION We review the reasonableness of the sentence imposed for abuse of discretion. United States v. Haack, 403 F.3d 997, 1003 (8th Cir.), cert. denied, — U.S. —, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). A sentence may be unreasonable if the district court failed to consider a relevant factor that should have received significant weight, gave significant weight to an improper or irrelevant factor, or considered only appropriate factors but committed a clear error of judgment by imposing a sentence that lies outside the limited range of choice dictated by the facts. Id. at 1004. The relevant factors are those identified by Congress in 18 U.S.C. § 3553(a). See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 764-66, 160 L.Ed.2d 621 (2005). Just as “[a]n extraordinary reduction must be supported by extraordinary circumstances,” United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir.2005) (analyzing a downward departure of 75 percent), so must an" }, { "docid": "10308363", "title": "", "text": "Court reversed and remanded. We held that the district court had committed nonconstitutional error under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), by treating the Guidelines, at least in part, as mandatory and that the error was not harmless because “[t]he record clearly indicates the district court would have imposed a higher sentence if it believed it had the discretion to do so.” Montgomery, 439 F.3d at 1262-63. Upon resentencing, the district court departed upward two levels pursuant to § 5K2.1, which resulted in a total offense level of 21 and a Guidelines range of 57 to 71 months. Relying on the reasoning, legal authority, and factual basis set forth in its previous order granting upward departure, the district court then reimposed its sentence of 57 months’ imprisonment— now at the bottom, rather than the top, of the Guidelines range — to be followed by 36 months of supervised release. Mr. Montgomery appeals. II. Discussion A. Standard of Review Mr. Montgomery disputes whether the district court’s reliance on his wife’s suicide was a permissible departure factor under § 5K2.1. Section 5K2.1 provides: Death (Policy Statement) If death resulted, the court may increase the sentence above the authorized guideline range. Loss of life does not automatically suggest a sentence at or near the statutory maximum. The sentencing judge must give consideration to matters that would normally distinguish among levels of homicide, such as the defendant’s state of mind and the degree of planning or preparation. Other appropriate factors are whether multiple deaths resulted, and the means by which life was taken. The extent of the increase should depend on the dangerousness of the defendant’s conduct, the extent to which death or serious injury was intended or knowingly risked, and the extent to which the offense level for the offense of conviction, as determined by the other Chapter Two guidelines, already reflects the risk of personal injury. For example, a substantial increase may be appropriate if the death was intended or knowingly risked or if the underlying offense was one for which base offense levels" }, { "docid": "10316865", "title": "", "text": "which largely consisted of the factual.account set forth above. The jury found Hansen guilty on all counts. Hansen was sentenced on October 9, 2002. At the sentencing hearing and in a subsequently filed Memorandum dated February 14, 2003, the district court explained its findings. The court grouped Counts 1, 2, and 4 together and determined a base offense level of 43 using the first degree murder guideline. See U.S.S.G. § 2A1.1. The court then departed downward to an offense level of 33 based upon Hansen’s state of mind. See U.S.S.G. § 2A1.1 cmt. n. 1 (“The extent of the departure should be based upon the defendant’s state of mind (e.g., recklessness or negligence), the degree of risk inherent in the conduct, and the nature of the underlying offense conduct.”). A two-level enhancement for obstruction of justice was added because Hansen testified falsely before the grand jury, resulting in a total offense level of 35. See U.S.S.G. § 3D1.2(c). Because Hansen had a criminal history category of VI, the district court calculated Hansen’s guideline sentencing range to be 292 to 365 months. The court sentenced Hansen to a 352-month term of imprisonment (292 months on counts 1, 2, and 4 — the grouped counts — and a consecutive term of 60 months on count 3). Five years of supervised release and a restitution payment of $3,775 were also imposed. These appeals followed. II. DISCUSSION Hansen appeals both his conviction and sentence, raising no less than eleven points of error. We address each challenge in turn, taking the sentencing issue first. A. Booker Sentencing Issue Hansen’s first and main line of attack is the fact that the district court sentenced him under the prior mandatory guideline regime. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Despite his claim to the contrary, however, Hansen did not argue to the district court that the guidelines were unconstitutional or that his sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); therefore, his Booker claim is not preserved and thus we review" }, { "docid": "22999657", "title": "", "text": "appeals, arguing that: (1) the district court erred by using relevant conduct to calculate his base offense level under U.S.S.G. § 2S1.1(a)(1); (2) the district court erred by imposing a two-level enhancement for sophisticated laundering pursuant to U.S.S.G. § 2S1.1(b)(3); and (3) the district court’s application of Justice Breyer’s remedial holding in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), violates the Ex Post Facto and Due Process Clauses. II. DISCUSSION A Base Offense Level Under U.S.S.G. § 2S1.1(a)(1) Charon argues that the district court’s calculation of his base offense level should have been based only on the drugs that were directly related to his money laundering offense, rather than his drug dealing relevant conduct. According to Charon, U.S.S.G. § 2S1.1(a)(1) does not direct the court to apply relevant conduct; instead, the guideline limits the offense level determination to the underlying offense from which the laundered funds were derived. Charon contends that the Sentencing Commission’s reasons for amending § 2S1.1(a)(1) illustrate that the Commission did not intend for courts to consider relevant conduct. As support for his argument, Charon points out that the Commission listed the base offense level, special offense characteristics, cross references, and special instructions as considerations for determining the base offense level for the underlying offense, but did not mention relevant conduct. See U.S.S.G. app. C at 227-30 (Supp. Nov. 2002). Although the Sentencing Guidelines are now advisory, a district court is still required to calculate the guideline range. United States v. Angeles-Mendoza, 407 F.3d 742, 746 (5th Cir.2005) (citing Booker, 543 U.S. at 245-46, 125 S.Ct. 738, and United States v. Mares, 402 F.3d 511, 518-19 (5th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005)). In addressing Charon’s challenge to the district court’s calculation of his guideline range, we continue after Booker to review the district court’s interpretation and application of the Guidelines de novo and its factual determinations for clear error. See United States v. Solis-Garcia, 420 F.3d 511, 513-14 (5th Cir.2005); see also United States v. Villanueva, 408 F.3d 193, 203 n. 9" }, { "docid": "16759960", "title": "", "text": "for each other’s reasonably foreseeable conduct, it does not matter that Katalinic was in the lobby with the shotgun when Maltz made the “Hurry or I’ll fucking shoot you” threat. See U.S.S.G. § lB1.3(a)(l)(B); United States v. Bailey, 227 F.3d 792, 800 (7th Cir.2000). And Katalinic does not challenge the district court’s finding that Maltz’s statement was a death threat that was reasonably foreseeable to Katalinic. Thus, because the death threat was related to the shotgun, the district court should not have increased Katalinic’s robbery sentence based on Maltz’s threat. Because the district court misapplied the sentencing guidelines in calculating the guidelines range, we must remand the case for resentencing. See United States v. Scott, 405 F.3d 615, 617 (7th Cir.2005). If the district court had not improperly adjusted Katalinic’s base offense level upward two levels for the death threat under § 2B3.1(b)(2)(F), Katalinic’s total offense level would have been 19, which would have resulted in an imprisonment range of 30 to 37 months for the robbery conviction. The district court sentenced Katalinic to 37 months, the lowest end of the guidelines range for the higher offense level the court calculated with the threat adjustment. Faced with a lower guidelines range, the district court may have sentenced Katalinic differently. Katalinic also argues on appeal that the presumption of reasonableness applied to sentences within the guidelines range by appellate courts has produced a de facto mandatory sentencing regime in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Counsel withdrew that contention at oral argument, conceding that Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007), has foreclosed it. Therefore, we do not address this issue. For the foregoing reasons, we VaCate Katalinie’s sentence and Remand the case for resentencing. . The double-counting prohibition was located in Note 2 until 2002 when the Sentencing Commission moved the prohibition to Note 4. See U.S.S.G., app. C, amend. 642 (2002). We will refer to the note as Note 4 throughout this opinion and point out when we are discussing earlier" }, { "docid": "22340499", "title": "", "text": "told Baker not to lay his hands on Larry Jr. These calculations resulted in a total offense level of 24, a criminal history category of II, and an advisory Guidelines range of 57 to 71 months. Before sentencing, Bridges objected to the enhancement for possession of the firearm in connection with another felony, and requested a sentence below the Guidelines range, urging the court to consider what Bridges’s Guidelines range would have been if he had been given credit for acceptance of responsibility. At sentencing, Bridges argued he should receive a sentence below the Guidelines, in part because of his significant health problems. After reviewing the factors set forth in 18 U.S.C. § 3553(a), the district court imposed a sentence of 48 months imprisonment, nine months below the low end of Bridges’s Guidelines range. This appeal followed. II. DISCUSSION A. Possessing a Firearm in Connection with Another Felony Offense Bridges argues the district court erred by applying a Guidelines enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing a firearm “in connection with another felony offense.” Bridges contends the enhancement violates his Fifth and Sixth Amendment rights because the alleged conduct— exhibiting a firearm during a confrontation — was not charged in the indictment or found beyond a reasonable doubt by the jury. This argument fails. It is well established, after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that “judicial factfinding is permissible at sentencing so long as the district court understands that the sentencing guidelines are advisory only.” United States v. Brave Thunder, 445 F.3d 1062, 1065 (8th Cir.2006). Our review is de novo on the district court’s interpretation and application of the Guidelines. Id. Under an advisory sentencing regime, “the district court is entitled to determine sentences based upon judge-found facts and uncharged conduct” where the defendant is “not sentenced in excess of the statutory maximum.” United States v. Garcia-Gonon, 433 F.3d 587, 593 (8th Cir.2006) (citing United States v. Red Elk, 426 F.3d 948, 951 (8th Cir.2005)); see also United States v. Okai, 454 F.3d 848, 851 (8th Cir.2006) (explaining, “after Booker," }, { "docid": "22391898", "title": "", "text": "EDITH BROWN CLEMENT, Circuit Judge: In this consolidated appeal, the two defendants challenge their sentences on various grounds. For the following reasons, we affirm. I. FACTS AND PROCEEDINGS Jamel Caldwell and Thomas Blakemore were indicted on multiple counts related to a scheme of making false statements in connection with the acquisition of firearms from licensed dealers. Pursuant to written plea agreements, the defendants pleaded guilty to one count of conspiracy to perpetrate the indicted overt acts, in violation of 18 U.S.C. §§ 371 and 922(a)(6). Both defendants were sentenced on February 14, 2005, after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which held that the United States Sentencing Guidelines (“U.S.S.G.”) were advisory. For purposes of calculating a guideline range, the district court enhanced both Caldwell’s and Blakemore’s offense levels pursuant to U.S.S.G. § 2K2.1(b)(5), for possessing or transferring a firearm “with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” The district court also enhanced Caldwell’s offense level based on his role as a leader or organizer of a criminal activity involving five or more participants, pursuant to U.S.S.G. § 3B1.1(a). On appeal, Caldwell alleges the district court erred in applying the two enhancements and in determining his sentencing range using facts not proven beyond a reasonable doubt. Blakemore alleges that the district court erred in applying the § 2K2.1(b)(5) enhancement and otherwise in giving him an unreasonable sentence. II. STANDARD OF REVIEW After Booker, this court continues to review a district court’s interpretation and application of the guidelines de novo and its findings of fact for clear error. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005); United States v. Creech, 408 F.3d 264, 270 & n. 2 (5th Cir.), cert. denied, — U.S.-, 126 S.Ct. 777, 163 L.Ed.2d 602 (2005). Additionally, though Booker gave the district courts the ability to exercise discretion in sentencing, a district court’s ultimate sentencing decision is reviewed for reasonableness. United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert." }, { "docid": "22372891", "title": "", "text": "misconstrued U.S.S.G. § 1B1.10; 4) U.S.S.G. § 1B1.10 is merely advisory after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); and 5) the District Court failed to weigh the equities and consider the rule of lenity in its decision. We will affirm. I. John and Jane Doe each pled guilty to one count of conspiracy to distribute crack cocaine (21 U.S.C. § 846) and one count of distribution of crack cocaine (21 U.S.C. § 841(a)(1)), and entered into cooperation plea agreements with the government. John Doe’s U.S.S.G. § 2D1.1 base offense level for these convictions was 34. He received a two-level increase for his role in the offense, and a three-level reduction for acceptance of responsibility, resulting in a total adjusted offense level of 33. His criminal history was category II. Ac cordingly, this produced a Guidelines sentencing range of 151-188 months of imprisonment. John Doe, however, was also subject to a statutory mandatory minimum sentence of life in prison because of prior drug convictions. As the mandatory minimum sentence exceeded the Guidelines range, the mandatory minimum became the Guidelines sentence, pursuant to U.S.S.G. § 5G1.1. This mandatory minimum Guidelines sentence was not applied to John Doe, however, because of substantial assistance he provided to the government. The government moved for a downward departure from the mandatory minimum sentence pursuant to 18 U.S.C. § 3553(e) and from the Guidelines range pursuant to U.S.S.G. § 5K1.1. The District Court ultimately sentenced John Doe, on August 16, 2007, to 84 months imprisonment, a sentence well below both the mandatory minimum Guidelines sentence and the otherwise applicable Guidelines range. Jane Doe’s U.S.S.G. § 2D1.1 base offense level for these convictions was 34. She received a three-level reduction for acceptance of responsibility, resulting in a total adjusted offense level of 31. Her criminal history was category II. Accordingly, this produced a Guidelines sentencing range of 121-151 months of imprisonment. Jane Doe, however, was also subject to a statutory mandatory minimum sentence of twenty years, due to a prior drug conviction. As the mandatory minimum sentence exceeded the Guidelines" }, { "docid": "22955353", "title": "", "text": "Antonietti we did hold that the district court had plainly erred by erroneously calculating the defendants’ base offense levels and that the defendants’ substantial rights were affected as a result of the error. Id. at 208-09. However, the defendants in that case were sentenced pursuant to the mandatory sentencing guidelines. When the sentencing guidelines were mandatory, there was a greater likelihood that a guidelines error affected the sentence that was imposed. Thus, the holding in Antonietti was that the error affected the defendants’ substantial rights because they would not have been eligible for the same sentence had the district court correctly calculated their base offense levels. But United States v. Booker, 543 U.S. 220, 267, 125 S.Ct. 738, 769, 160 L.Ed.2d 621 (2005), changed that. In Pantle’s case, the maximum sentence permitted by statute is 120 months. Because his guidelines range exceeded the statutory maximum sentence, the statutory maximum became his guidelines sentence. If Pantle were to be resentenced without counting either prior conviction as a crime of violence, his base offense level would be 14 (instead of 24). See U.S.S.G. § 2K2.1(a)(6). Applying the same upward adjustments as before, Pantle’s adjusted offense level would be 20 (instead of 30). Combined with his 23 criminal history points, which yield a criminal history category of VI, Pantle’s guidelines range would be 70 to 87 months (instead of 168 to 210 months). Although his guidelines range would be different, he could still receive the same 120-month sentence because § 3553(a) would permit the district court to vary upward to that sentence. Unlike the appellants in Antonietti, we do not know that Pantle would not have received the same sentence without the (assumed) error. To put it in terms of the third prong standard, Pantle has not demonstrated that there is a reasonable probability that he would have received a lower sentence if the two prior convictions had not been counted as crimes of violence. See Rodriguez, 398 F.3d at 1299. We can go further than that. In fact, the record actually establishes a reasonable probability that Pantle would not have received a" }, { "docid": "15164785", "title": "", "text": "which, coupled with a total offense level of 37, resulted in an advisory guidelines range of 360 months to life imprisonment. Wynn’s counsel filed a sentencing memorandum that argued for a downward variance from the guidelines range, but did not object to any factual assertions in the PSR or to the finding that Wynn was a career offender. After reviewing the PSR, the district court determined that the correctly calculated total offense level was 37; however, the court awarded a three-point reduction for acceptance of responsibility for a total offense level of 34, reducing the guidelines range to 262 to 327 months of imprisonment. The district court further noted that Wynn was a career offender but that “because of [Wynn’s] forthrightness, [and Wynn’s] willingness to help,” it would treat Wynn’s final total offense level as a 33, with a criminal history category of VI. Record (“R.”) at 29 (09/18/07 Sent. Hr’g Tr. at 11). This produced a guidelines range of 235 to 293 months. The district court sentenced Wynn to 235 months of imprisonment. Wynn timely appealed this sentence. II. ANALYSIS Wynn’s sole contention on appeal is that, in light of Begay v. United States, — U.S. -, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), the district court erred in imposing the U.S.S.G. § 4B.l(a) career-offender enhancement to his sentence because his conviction under Ohio Rev. Code § 2907.03 is not a “crime of violence” under the Begay test. Wynn asserts that, without this enhancement, his total offense level would have been 27, with a criminal history category of VI, for a guidelines range of 130 to 162 months. As explained below, we conclude that we must vacate Wynn’s sentence in light of Begay. A. Standard of Review After the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review sentences “for reasonableness— including for procedural error in the calculation of the guideline range such as defendant asserts in this case.” United States v. Bartee, 529 F.3d 357, 358 (6th Cir.2008) (citing Gall v. United States, 552 U.S. 38, 128" } ]

[ { "docid": "4779433", "title": "", "text": "for the court. In this instance, the court elects not to exercise its discretion to find a conclusive judicial admission. 2. Statement by Attorney as Evidentia-ry Admission. An inadvertent statement by counsel is more likely to be treated as an evi-dentiary admission than a judicial admission. Evidentiary admissions, unlike judicial admissions, are mere evidence, are not conclusive, and may be contradicted by other evidence. A statement by one’s attorney is frequently an admission by a party-opponent under Federal Rule of Evidence 801(d)(2). It is likely to be a statement by a person authorized by the party to make a statement concerning the subject. Fed.R. Evid. 801(d)(2)(C). And it is likely to be a statement by the party’s agent concerning a matter within the scope of the agency made during the existence of the relationship. Fed.R.Evid. 801(d)(2)(D); 4 J. Wein-stein & M. Berger, Weinstein’s Evidence, ¶ 801(d)(2) (1988); B. Russell, Bankruptcy Evidence Manual, § 801.22 (1987). In this instance, the debtors’ attorney wrote “As the Debtor’s schedules indicate, there is substantial equity in the property and the security interest of the moving party is in no way impaired.” Such a statement is a natural candidate for introduction into evidence as an admission by a party-opponent. Trustworthiness, however, remains a factor. The fact that the debtors’ schedules, which they executed under penalty of perjury, show that there is no equity in the property, casts doubt upon the trustworthiness of counsel’s assertion. It is not sufficiently trustworthy to prompt the court to allow it to be introduced into evidence. Even if it were introduced, the court would ascribe so little weight to it that it could not form the basis for now affording relief to San Francisco Federal. 3. Consideration of Evidence from Another Motion. San Francisco Federal also asks the court to consider, as evidence on reconsideration, an appraisal that was an exhibit to a declaration in support of a different motion for relief from stay by a different creditor (“Beneficial”), who held a deed of trust inferior to that of San Francisco Federal. Beneficial had obtained the deed of trust in" } ]

[ { "docid": "15923437", "title": "", "text": "Order re: Consolidated Motion to Disgorge Fees, entered by this Court on December 27, 2001, and Mr. Halbert's Motion for Reconsideration of such Order; (d) Mr. Halbert's Consolidated Motion to Vacate 4/19/96, 4/30/96, and 8/29/96 Orders Because of Fraud on the Court and the Court’s related Order Denying Consolidated Motion to Vacate 4/19/96, 4/30/96 and 8/29/96 Orders; (e) All proceedings relating to (1) the allowance, disallowance, and/or reconsideration of Comerica Bank claims, (2) compelling the Bank to disgorge collateral proceeds and other payments received on its claims, and (3) vacating or modifying the 4/30/96 Order modifying the automatic stay with respect to Comerica Bank; (f) All litigation which may be filed by the Trustee asserting claims against the Bank, the Former Trustee, their respective counsel, bank officers, employees, and former officers and employees, The Becker Group, Injectronics, Inc., Dale Hadel, Rick Schneider, and Richard May; (g) All matters related to the Trustee’s reporting duties under 18 U.S.C. § 3057 and the Michigan Rules of Professional Conduct; (h) Prosecuting the estate's claims against other persons and entities, provided that (1) Mr. Halbert has no interest adverse to such additional representation and files an Amended Affidavit of Disinterestedness stating same, and (2) the Trustee files an Amendment to this Employment Application setting forth such additional representation; and (i) All appeals relating to the foregoing. Trustee’s Amended Application for Authority to Employ Todd M. Halbert as Special Counsel, pages 1-2. . Halbert alleges that, of the numerous local bankruptcy attorneys he spoke with, only Nathan would accept employment as general counsel (because of the political nature of the parties involved), and then only if he would have no involvement in litigating claims against the Bank, the Former Trustee, and their counsel. . In accordance with applicable rules, the application and proposed order to retain Hal-bert were served upon the United States Trustee and no other parties in interest in the Chapter 7 case. The order appointing Hal-bert was not personally signed by the Bankruptcy Judge but rather was entered by the Court through the clerk's office which affixed the Bankruptcy Court’s signature stamp" }, { "docid": "18542586", "title": "", "text": "for Stay was also filed to stay BBHC's bankruptcy proceedings until the Proof of Claim Appeal could be decided. See infra. This motion was also denied by the Bankruptcy Court and the District Court, by Order of Chief Judge Longobardi. . All citations to Docket Items and Appellate records in this section refer to Civil Action No. 95-276 (MMS). . The Adversary Complaint also raised a breach of fiduciary duty claim and a claim for prejudgment and post-judgment interest on damages. Because those claims were brought against non-debtor entities, they were dismissed without prejudice for lack of subject matter jurisdiction. Id. ¶¶ 11, 12. . Appellants do not challenge the fact of numerous transactions taken in reliance on the confirmed Reorganization Plan which have been sworn to by BBHC’s Vice President, Treasurer and Chief Financial Officer, see D.I. 8 and 21, but rather, challenge the application of the legal doctrine of mootness to these facts. As such, the Court will take as true the representations made by BBHC with respect to the transactions entered into after confirmation. . All citations to affidavits in this section refer to the first affidavit filed by Killam, dated May 31, 1995; see Civil Action No. 95-341 (MMS), D.I. 8, unless otherwise specifically noted. . Comerica, a BBHC creditor who is not a party before the Court, has filed an amicus curiae brief in support of the Motion to Dismiss the Adversary Appeal. D.I. 12. The amicus filing suggests that Comerica has its interests represented on the matters presently before the Court. However, the presence of counsel does not lead to the conclusion that as to this factor, the equitable mootness doctrine should not cause the dismissal of the appeal. All of the Continental Airlines factors are aimed at preventing the reversal of a confirmed reorganization plan once the reorganization has occurred, in recognition of the fact that at some point, the interests of creditors and the reorganized entity itself become paramount to the interests of granting relief to a single creditor who has been excluded from the reorganization. Therefore, the fact that simply because" }, { "docid": "15923436", "title": "", "text": "bankruptcy case. . Prior to his appointment as special counsel to the Successor Trustee, Halbert asserts that he spent hundreds of hours (total 1,500 hours on theses and other related matters) investigating the facts, researching and briefing the claims against the Bank, the Former Trustee, and their counsel. . Schneider also asserts a priority unsecured claim in the bankruptcy case for his unpaid fees and expenses incurred while he acted as court-appointed counsel for the trustee. .Mr. Vining’s application said, with respect to the duties Mr. Halbert would perform: 6.The Trustee wishes to retain Todd M. Halbert as special counsel to render legal advice, prepare pleadings and documents, appear at hearings, and provide other legal services in connection with the following matters (the \"Litigation”): (a) The Former Trustee's motion for an order authorizing distributions to the Former Trustee, his counsel, and the Bank and Mr. Halbert's Objections thereto; (b) Mr. Halbert’s motion to remove the Former Trustee, disqualify his counsel, and vacate the Comerica Settlement Order; (c) Mr. Halbert's Consolidated Motion to Disgorge Fees, the Order re: Consolidated Motion to Disgorge Fees, entered by this Court on December 27, 2001, and Mr. Halbert's Motion for Reconsideration of such Order; (d) Mr. Halbert's Consolidated Motion to Vacate 4/19/96, 4/30/96, and 8/29/96 Orders Because of Fraud on the Court and the Court’s related Order Denying Consolidated Motion to Vacate 4/19/96, 4/30/96 and 8/29/96 Orders; (e) All proceedings relating to (1) the allowance, disallowance, and/or reconsideration of Comerica Bank claims, (2) compelling the Bank to disgorge collateral proceeds and other payments received on its claims, and (3) vacating or modifying the 4/30/96 Order modifying the automatic stay with respect to Comerica Bank; (f) All litigation which may be filed by the Trustee asserting claims against the Bank, the Former Trustee, their respective counsel, bank officers, employees, and former officers and employees, The Becker Group, Injectronics, Inc., Dale Hadel, Rick Schneider, and Richard May; (g) All matters related to the Trustee’s reporting duties under 18 U.S.C. § 3057 and the Michigan Rules of Professional Conduct; (h) Prosecuting the estate's claims against other persons and" }, { "docid": "17514952", "title": "", "text": "agreement further provided that “[i]n no event shall the [owner-operators] recover or seek to recover more than $900,000 from Arctic.” After entry of the judgment and finalization of Arctic’s plan of reorganization, the district court withdrew the bankruptcy reference over the adversary proceeding, and plaintiffs’ action against Comerica seeking enforcement of the Arctic Litigation judgment was removed to the district court. Plaintiffs thereafter twice amended their complaint, ultimately setting forth a single count seeking restitution or disgorgement of the maintenance escrow funds deposited by Arctic into Comerica’s accounts and purportedly used by Comerica to pay down Arctic’s indebtedness. In denying, in part, Comerica’s motions to dismiss plaintiffs’ complaints, the district court opined that the funds held in escrow under 49 C.F.R. § 376.12(k) were subject to a statutory trust for plaintiffs’ benefit, and plaintiffs were entitled to pursue a common law claim against Comerica for restitution. Owner Operator Indep. Drivers Ass’n, Inc. v. Comerica Inc., No. 2:05-CV-00056, 2006 WL 1339427, at *4 (S.D.Ohio May 16, 2006) (unpublished) (footnote omitted); see also Owner Operator Indep. Drivers Ass’n, Inc. v. Comerica Bank, 540 F.Supp.2d 925, 931-32 (S.D.Ohio 2008). The parties filed cross-motions for summary judgment. Comerica disputed the existence and alleged breach of a statutory trust and asserted statute of limitations and bona fide purchaser defenses. It maintained that if a trust attached to any of Arctic’s bank accounts, it attached to funds in the depository/operating account when the nine cents per mile was deducted by Arctic from the owner-operator’s compensation; in other words, Arctic was withholding the maintenance fees, not Comerica. Comerica asserted that the funds it credited to the Arctic loan balance from the cash collateral account were not subject to the trust because the trust did not exist yet. Conversely, plaintiffs argued that the trust was created when funds were deposited by customers into the cash collateral account. Because the maintenance escrow fees were deducted from compensation, which was a percentage of the amount received in the cash collateral account, the escrow fees were a part of the payments deposited into the cash collateral account. Comerica, in turn, collected" }, { "docid": "17514891", "title": "", "text": "CCC, and therefore not comparable with the Debtor. He also noted that the bond rates reported by Merrill Lynch and Bloomberg are not comparable because they are composed largely of unsecured bonds, whereas Comerica’s claim is secured. Comerica’s expert therefore relied on a method to “blend” a rate derived from RSC’s senior secured bonds, at 7%, with Merrill Lynch’s CCC rated composite bond index of 11.4%, to arrive at a blended rate of 9.5%. Except for the isolated fact that RSC’s secured bond rating is 7%, the Court finds little of use in Mr. Lyon’s analysis, because it does not comport with the procedure required by Till. In order to conclude the interest rate should be significantly higher than RSC’s senior secured 2017 bonds that are currently yielding 7%, Comerica’s expert concluded that rate should apply only to 65% of Comerica’s secured debt, because 65% is “an appropriate loan-to-value metric that banks would use to extend secured financing on the collateral.” He then concluded that the remaining 35% of Comerica’s secured claim should be regarded as “unsecured” (quotation marks in original) and bear the interest rate for unsecured bonds, which he concluded was 11.4%. Comeri-ca’s expert then mathematically blended these rates to arrive at 9.5% for the aggregate secured debt. There are several problems with this approach. First, and most obviously, 35% of Comerica’s secured claim is not unsecured. Rather, it is fully secured. There is no basis to treat it as unsecured when the fact is that it is secured. Treating a portion of the secured debt as unsecured is directly contrary to Till’s holding that the risk factors should be based on “the characteristics of the [actual] loan,” and its rejection of risk factors that might be considered for hypothetical or allegedly comparable loans in the market. Second, the secured portion of the debt secured by Mr. Till’s pickup truck was similarly secured to the full extent of the value of the collateral. The amicus brief for commercial lenders argued that the Supreme Court should adopt this same “investment band” approach that Comeri-ca’s expert used. But despite the" }, { "docid": "23447299", "title": "", "text": "reorganization attempt. Id. When, as here, there are no unencumbered assets available to fund administrative expenses, the court should “balance the misfortune of having some allowances go unpaid against the possible inequity of charging them all against mortgaged property.” First Western Savings and Loan Association v. Anderson, 252 F.2d at 548; see also In re Hotel Associates, Inc., 6 B.R. 108 (Bankr.E.D.Pa.1980). Inevitably, the Court’s allocations will yield no more than “rough justice.” In re Proto-Specialities, Inc., 43 B.R. 81, 83 (Bankr.D.Ariz.1984). The First Circuit applied the “balancing test” set forth in First Western Savings and Loan Association v. Anderson, 252 F.2d at 548 n. 8, and affirmed a District Court order which the First Circuit characterized as marking off “a tolerable middle ground.” In re Colonial Realty Investment Co., 516 F.2d at 159. The debtor-in-possession was permitted to use rents from income-producing properties to pay some expenses beyond those benefitting only the mortgage holders but not to treat the income as general assets of the estate. This limited incursion, the court stated, would further the debtor’s rehabilitation while respecting the property rights of the secured creditors. Id. The order authorizing the use of rental income had been entered early in the reorganization proceeding when the debtor’s prospects were difficult to assess and thus was comparable to an order conditioning the debtor’s use of cash collateral under section 363(c)(1). In a more recent case, a bankruptcy court found that the secured creditor had given implied consent to charges against its collateral when the creditor chose to move for appointment of a trustee rather than for relief from stay. In re Hotel Associ ates, Inc., 6 B.R. 108, 109 (Bankr.E.D.Pa.1980). The court found that the creditor knew or should have known that the debt- or’s estate was insubstantial apart from the secured property and, further, that by bringing about the appointment of the trustee, the creditor had “caused the expenses that the trustee is bound to incur.” Id. at 111-12. STATEMENT OF FACTS Sovran Bank, N.A. (hereafter “Sovran”), is the holder of two promissory notes executed by the debtor on June" }, { "docid": "18542587", "title": "", "text": "after confirmation. . All citations to affidavits in this section refer to the first affidavit filed by Killam, dated May 31, 1995; see Civil Action No. 95-341 (MMS), D.I. 8, unless otherwise specifically noted. . Comerica, a BBHC creditor who is not a party before the Court, has filed an amicus curiae brief in support of the Motion to Dismiss the Adversary Appeal. D.I. 12. The amicus filing suggests that Comerica has its interests represented on the matters presently before the Court. However, the presence of counsel does not lead to the conclusion that as to this factor, the equitable mootness doctrine should not cause the dismissal of the appeal. All of the Continental Airlines factors are aimed at preventing the reversal of a confirmed reorganization plan once the reorganization has occurred, in recognition of the fact that at some point, the interests of creditors and the reorganized entity itself become paramount to the interests of granting relief to a single creditor who has been excluded from the reorganization. Therefore, the fact that simply because one creditor has participated in the proceedings does mean that the goals behind the Continental Airlines test should be disregarded. . All citations to Docket Items and the Appellate record in this section refer to Civil Action No. 95-267 (MMS). .On November 28, 1994, Appellants filed a Motion for Appointment of Trustee (the “Trustee Motion”), seeking the appointment of a trustee for BBHC based on the alleged fraudulent transfer. After a three day trial on the Motion, the Bankruptcy Court found that there was no basis for the appointment of a trustee on the alleged fraudulent transfer. The Bankruptcy Court denied the Motion by Order dated January 24, 1995. . The Bankruptcy Court referred to Appellants as the \"Simplot Group.” . On March 7, 1995, a hearing was held on the approval of the First Amended Disclosure Statement and the Disallowance of Appellants' Claim. 95-341 App. at Exh. 22. . All citations to Docket Items and the Appellate record in this section refer to Civil Action No. 95-341 (MMS)." }, { "docid": "1101431", "title": "", "text": "a trustee; (4) procuring an administrative priority under § 503(b); (5) seeking court approved derivative standing to pursue the action, on behalf of the trustee, for the benefit of the estate. Also, under appropriate circumstances, a creditor may conceivably be entitled to sue a secured creditor outside of the bankruptcy court pursuant to a state law cause of action. . With the court’s holding today, all four bankruptcy judges of the Western District of Michigan have held that § 506(c) standing is limited to the trustee or debtor in possession. See In re Kessler, Inc., No. 90-85593 (Bankr.W.D.Mich. May 8, 1991) (bench opinion by Judge Stevenson); Interstate I, supra (Judge Howard); Interstate II, supra (Judge Howard); In re Wyckoff, supra (Judge Nims). Dock’s Corner argues that the court is bound by a decision of the District Court for the Western District of Michigan in McAlpine v. Comerica Bank (In re Brown Bros.), 136 B.R. 470 (W.D.Mich.1991). In Brown Bros., the issue was whether the trustee’s special counsel was entitled to compensation under a contingency fee arrangement which was to be paid from cash collateral subject to a bank’s security interest. Standing under § 506(c) was never raised, argued, or addressed at trial. The bank admitted that it owed the special counsel a fee. The issue was the reasonableness of the special counsel’s fee. (See Supplemental Memorandum of Law in Support of Trustee’s Motion for Summary Judgment at 4-7) (a copy of the trial transcript is attached to the motion as Exhibit 2.) Nevertheless, the district court concluded that it \"adopts the majority view that the [special counsel] has standing to bring an action ... under § 506(c).” 136 B.R. at 474. Since the issue of § 506(c) standing was never before the court in Brown Bros., this court finds that the statement quoted is dictum with no precedential affect over this proceeding. Since the bank in Brown Bros, admitted to the fact that it owed the special counsel a fee, it, in effect, consented to the surcharge. See Trim-X, 695 F.2d at 301; Staunton Indus., 74 B.R. at 504; Wyckoff," }, { "docid": "17514875", "title": "", "text": "duty. That adversary proceeding is currently pending before Bankruptcy Judge Case and is not scheduled for trial until 2012. Comerica’s primary defense is not to deny the facts as alleged by the Debtor, but to argue that there was no damage to the Debtor because the scheme was discovered before the sale could be concluded. Procedural Background Although the Debtor had been downsizing in 2007 and 2008, by the petition date it owned approximately 180 items of major equipment. About two months after the filing, the Debtor received a bid from an auction company to purchase approximately 50% of the Debtor’s equipment for a little over $5 million. After initially opposing the sale, Comerica eventually consented to the sale and made a credit bid of $7 million for the equipment. After the sale, the Debtor’s remaining equipment was ap proximately 83 pieces of major equipment along with approximately 50 attachments and tools. The Debtor filed its plan of reorganization in December, 2009, and filed its first amended plan in October, 2010. In November, Comerica filed an election pursuant to Bankruptcy Code § 1111(b), seeking to have its approximate $25 million claim treated as fully secured. The Debtor objected pursuant to Code § llll(b)(l)(B)(II), arguing that the § 1111(b) election is not available when the property has been sold under § 363. The parties briefed and argued the issues of whether the Code’s language “is sold” may include a sale prior to confirmation and how the exception to the election applies when only some of “such property is sold.” The Court concluded that “is sold” includes sales made prior to the election deadline, because “or is to be sold under the plan” refers to sales to be made after the election deadline. The Court also held that when there is a sale of only a portion of the property there must be a pro rata exclusion from the election. Pursuant to that ruling, for purposes of confirmation the parties have stipulated that the value of Comerica’s collateral is $10 million and that Comerica’s total claim pursuant to § 1111(b) is $15.9" }, { "docid": "14341639", "title": "", "text": "ORDER AND OPINION GRANTING CLASS CERTIFICATION JAMES LAWRENCE KING, District Judge. THIS CAUSE is before the Court on Plaintiffs Delphia Simmons and Patricia Mattlage’s (“Plaintiffs”) Motion For Class Certification (DE #2384) (the “Motion”), filed January 6, 2012. The Court has carefully considered the Motion, Comerica’s Opposition (DE #2490), and Plaintiffs’ Reply (DE # 2583), as well as the parties’ voluminous evidentiary submissions and the oral argument of counsel. As announced at the hearing on this matter on July 18, 2012, and for the reasons set forth below, the Court grants the Motion. I. FACTUAL ALLEGATIONS Defendant Comerica Bank (“Comerica”) is a financial services company headquartered in Dallas, Texas that provides checking and debit card services to individual customers through approximately 550,000 consumer accounts in the United States and maintains approximately 443 banking centers in several states. {See Amended Compl. ¶¶ 15-18, DE # 990.) Plaintiffs are current and former Comerica customers who allege that Comerica employed specially designed software programs in a systematic scheme to extract the greatest possible number of overdraft fees from Plaintiffs and similarly situated Comerica customers across the country. {Id. ¶ 34.) Comerica allegedly collected millions of dollars in excessive overdraft fees as a result of this systematic scheme, much of it, according to Plaintiffs, from Comerica’s most vulnerable customers. {Id. ¶ 87.) To carry out this scheme, Plaintiffs allege that Comerica manipulated debit card transactions by, among other things, employing a bookkeeping device to re-sequence the transactions from highest-to-lowest dollar amount at the time of posting. {Id. ¶ 24.) Plaintiffs allege that these account manipulations, which Comerica deponents testified were applied in the same manner to all class members as a result of Comerica’s standardized computer software, caused funds in customer accounts to be depleted more rapidly, resulting in more overdrafts and, consequently, more overdraft fees. {See Motion, at 10-12 (citing Deposition of Matthew Wind, Ex. 1 of Appendix III to the Motion).) Plaintiffs further allege that, in many instances, overdraft fees were levied at times when, but for Comerica’s manipulation, there would have been sufficient funds in the consumers’ accounts. (Motion, at 14-25.) Plaintiffs" }, { "docid": "21192345", "title": "", "text": "not own the judgment in the instant case, Comerica is seeking to invoke collateral estoppel in an offensive, as opposed to defensive, manner. See Fletcher v. Nat’l Bank of Commerce, 825 S.W.2d 176, 177 (Tex.App.-Amarillo 1992, no writ) (discussing difference between offensive and defensive collateral estoppel). On appeal, Plunk’s only contention is that the fact of Hibernia’s ownership of the judgment was not fully and fairly litigated in the 1992 garnishment action. He cites to precedent identifying the following factors that a court is to take into account in deciding whether to apply offensive collateral estoppel: (1) Whether use of collateral estoppel will reward a plaintiff who could have joined in the previous action but chose to “wait and see” in the hope that the first action by another plaintiff would result in a favorable judgment; (2) Whether the defendant in the first action had the incentive to litigate the previous suit fully and vigorously; (3) Whether the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a different result; and (4) Whether the judgment in the first action is inconsistent with any previous decision. Scurlock Oil Co. v. Smithwick, 787 S.W.2d 560, 563 (Tex.App.-Corpus Christi 1990, no writ); see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 330-31, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (listing similar factors). Texas courts are given discretion in applying these factors. See Scurlock, 787 S.W.2d at 563. Plunk’s arguments fall primarily under the second factor, and the remaining three factors do not weigh in his favor. Plunk argues that he had little incentive to contest the 1992 garnishment action because it only concerned a nominal amount of money. He also contends that there was no express finding that Hibernia owned the judgment. We have reviewed the evidence of the 1992 garnishment action submitted to the bankruptcy court. The amount at issue was not large, but Plunk did file an answer through counsel and contested whether some of the money belonged to him or his wife. This level of participation suggests that Plunk did not consider" }, { "docid": "17514956", "title": "", "text": "or if funds in that account were unlawfully withdrawn. The evidence shows that: (1) the funds in the depository/operating account, other than the funds used to pay interest and bank fees, were freely available to satisfy outstanding obligations to Plaintiffs; and (2) the interest and fees charged [by Comerica] were commercially reasonable. Arctic’s deposits into the depository/operating account and Arctic’s allowance of Comerica to withdraw from that account to pay interest and fees were not in breach of trust. Comerica cannot be liable for receiving funds in breach of trust because the trustee’s transfer of funds did not constitute a breach of trust. Id. at 706-08. Plaintiffs now timely appeal the district court’s grant of summary judgment in favor of Comerica and the denial of their cross-motion for summary judgment. II. We conduct de novo review of the district court’s summary judgment order. Med. Mut. of Ohio v. K. Amalia Enters. Inc., 548 F.3d 383, 389 (6th Cir.2008). “In reviewing a grant of summary judgment on cross-motions seeking such relief, we apply the same legal standards as the district court: whether, with the evidence viewed in the light most favorable to the non-moving party, there are no genuine issues of material fact, so that the moving party is entitled to a judgment as a matter of law.” United States v. Petroff-Kline, 557 F.3d 285, 290 (6th Cir.2009) (citation omitted); see Federal Rule of Civil Procedure 56(c)(2). On appeal, plaintiffs maintain that the statutory trust attached when customers made payments into the cash collateral account; therefore, any money paid from that account, including funds used to pay down Arctic’s loan obligations to Comerica, included trust assets. Plaintiffs contend that Arctic breached its fiduciary duties when it used plaintiffs’ trust property to reduce its loan balance, and never drew those funds from Comerica to return plaintiffs’ maintenance escrows, in violation of the Truth-in-Leasing regulations. We agree. However, it is necessary that we first reexamine the district court’s threshold determination — challenged by Comerica— that 49 C.F.R. § 376.12(k) impressed the maintenance escrow funds with a statutory trust for plaintiffs’ benefit, thereby giving" }, { "docid": "14341675", "title": "", "text": "litigation. Comeriea suggests that class members may prefer an alternative posting order, (Opposition, at 24), but the legal and expert costs alone needed to litigate the case and calculate the damages would far exceed any individual class members’ recovery, and Comerica does not demonstrate anything to the contrary. As discussed above, class members are readily ascertainable through objective criteria: Comerica’s own records of individuals who were assessed overdraft fees. Plaintiffs’ expert will formulate calculations that can identify members of the class by running queries in Comerica’s computer records. Such calculations will be merely ministerial in nature, and will not be plagued by resolution of individual class members’ issues. Damages will be calculated using the same Comeriea records used to identify the class members. These facts make this case eminently manageable as a class action. In any event, the manageability factor is seldom sufficient in and of itself to defeat certification, and multiple individual lawsuits would be substantially less manageable. See Klay, 382 F.3d at 1272. Accordingly, the Court finds that Plaintiffs have met the superiority requirement of Rule 23(b)(3). 3. Affirmative Defenses Nor do Comerica’s affirmative defenses defeat certification of the class. (See Amended Answer, DE # 1709.) Although Comerica claims that its affirmative defenses require individualized proof, (Opposition, at 53-60), the Court finds the defenses are susceptible to class-wide proof. For example, defenses such as waiver and ratification, under the law of the two primary states at issue (Texas and Michigan), require full knowledge of all material facts to render their actions knowing and voluntary. Plaintiffs allege and offer evidence to support the contention that Comerica failed to meaningfully disclose its overdraft practice, including, inter alia, the existence of its secret line of credit which dictated how overdraft charges were generated. (See Motion, at 15, 25-30.) If Plaintiffs can prove these facts, they will undercut Comeriea’s defenses by common evidence. These defenses may also pertain more to damages than liability, depending on how the facts develop in discovery. See, e.g., Coughlin v. Blair, 41 Cal.2d 587, 602-03, 262 P.2d 305 (1953) (discussing waiver in the context of the measure" }, { "docid": "23447294", "title": "", "text": "determination of rights under the section. See In re Korupp Associates, Inc., 30 B.R. 659, 662 (Bankr.D.Me.1983) and cases cited therein. The courts have discretion to determine when and how much recovery shall be allowed from a secured party. First Western Savings and Loan Association v. Anderson, 252 F.2d 544, 547 (9th Cir.1958). Case law has established certain factors for evaluating alleged benefits flowing to the secured creditor from the particular expenses or activities. These factors encompass the following inquiries: (1) Was there a reasonable expectation of consummating a reorganization plan which would have benefitted secured creditors, thus justifying the imposition of charges against them which could not have been imposed in general bankruptcy proceedings? (2) Were the services rendered by those who have been awarded allowances intended primarily to protect the interests of unsecured creditors and the debtor, or was due regard also had for the interests of secured creditors? (3) Did those who have been awarded allowances demonstrate reasonable diligence and competence in bringing the unsuccessful reorganization proceedings to conclusion? (4) Were the secured creditors benefitted by anything which was done in the reorganization proceedings? (5) Did the secured creditors request or consent to the bringing of the proceedings, or consent to, or waive objection to, any of the activities of the trustee [or debtor-in-possession] therein? (6)Were the secured creditors responsible for any delays in connection with the proceedings, or uncooperative in the attempt to formulate an acceptable plan? First Western Savings and Loan Association v. Anderson, 252 F.2d at 548 n. 8. Other circuits have noted approval of this approach. See In the Matter of Trim-X, Inc., 695 F.2d 296 (7th Cir.1982); In re Colonial Realty Investment Co., 516 F.2d 154 (1st Cir.1975); United States v. Henderson, 274 F.2d 419 (5th Cir.1959). Factor number (5), “consent” by the secured party, has generated much judicial discussion but little agreement concerning what actions on the part of the secured creditor will justify a finding of consent and trigger the imposition of a broader range of charges against the secured assets. In Robinson v. Dickey, a Third Circuit decision, the" }, { "docid": "22957701", "title": "", "text": "the court of appeals for the First Circuit held: We think there is a tolerable middle ground, going beyond the use of rental income for the immediate and direct benefit of several creditors, but not approaching a treatment as “general assets,” which serves the rehabilitative goal of Chapter XII while respecting the property rights of the secured creditor ... We do find suggestive the approach of First Western Savings & Loan Association v. Anderson, 252 F.2d 544 (9th Cir. 1958) ... While the court describes in expansive terms the discretion of the district court to do what is “reasonable and fair,” 252 F.2d at 548, it hedges that language with a list of factors to be considered by the district court, including anticipated and actual benefit resulting to the secured creditors from “the activities for which the costs are incurred. 252 F.2d at 548 n.8. [516 F.2d at 159.] First Western Savings, supra, listed various factors to be considered in determining benefit to the estate. These factors include: (1) Was there a reasonable expectation of consummating a reorganization plan which would have benefited secured creditors, thus justifying the imposition of charges against them which would not have been imposed in general bankruptcy proceedings? (2) Were the services rendered by those who have been awarded allowances intended primarily to protect the interests of unsecured creditors and the debtor, or was due regard also had for the interests of secured creditors? (3) Did those who have been awarded allowances demonstrate reasonable diligence and competence in bringing the unsuccessful reorganization proceeding to conclusion? (4) Were the secured creditors benefited by anything which was done in the reorganization proceedings? (5) Did the secured creditors request or consent to the bringing of proceedings, or consent to, or waive objection to, any of the activities of the trustee therein? (6) Were the secured creditors responsible for any delays in connection with the proceedings, or uncooperative in the attempt to formulate a successful plan? Consideration of these factors now would be both presumptuous and premature. Pending formal application by the trustee, this court will rule on reimbursement" }, { "docid": "17514984", "title": "", "text": "functional equivalent of a secured lending agreement, ... [the] commercially reasonable analysis is inapplicable” and the lender takes PACA trust assets subject to the rights of the produce supplier); Endico Potatoes, Inc. v. CIT Group/Factoring, Inc., 67 F.3d 1063, 1069 (2d Cir.1995) (“Because [the secured lender] held only a security interest in [the PACA dealer’s] accounts receivable, and did not purchase those accounts for value, its interest is subject to the rights of the PACA trust beneficiaries.”). The rationale of the Fourth Circuit’s decision in Nickey Gregory is transferable to the case at bar, which involves a similar revolving loan agreement secured by Arctic’s accounts receivable. Arctic granted Comerica a security interest in its accounts receivable, inventory, and other assets, including real estate, as collateral for the loan. The funds Comerica advanced to Arctic were not funds paid directly from Arctic’s customers, but a formula-based credit determined by the value of the accounts receivable and other assets of Arctic. Pursuant to the Advance Formula Agreements executed in conjunction with the loan agreements, the formula for calculating the line of credit included, among other assets, eighty percent of the value of Arctic’s eligible accounts receivable. Under the terms of the loan, Arctic submitted to Comerica a list of customer invoices that qualified as “eligible accounts,” as defined by the loan documents. Upon receipt of this submission, deemed a “borrowing base certificate,” Comerica would make eighty percent of the eligible invoice amounts available to Arctic by transferring the funds, at Arctic’s request, to the depository/operating account. When payment was received from Arctic’s customers, the accounts receivable were deposited into Arctic’s cash collateral account, controlled solely by Comerica, either directly by remittance from the customer or by Arctic after receipt of payment from the shipping customer. Comerica processed the deposits to the cash collateral account on a regular basis, applying the funds directly to the loan balance. Comerica made the remaining amount available to Arctic, either by transferring the amount to Arctic’s operating account or increasing Arctic’s availability under the line of credit. Arctic could request that such funds be transferred into its" }, { "docid": "15216559", "title": "", "text": "tribal sovereign immunity as a “subordinate economic entity.” . As the district court in the Western District of Oklahoma commented, \"[a]lthough the subordinate economic entity analysis has been widely adopted, its implementation is rarely uniform.” Somerlott v. Cherokee Nation Distrihs. Inc., No. CIV-08-429-D, 2010 WL 1541574, at *3 (W.D.Okla. Apr. 16, 2010); see also Gavie, 555 N.W.2d at 293 (stating that “the demarcation between those business entities so closely related to tribal governmental interests as to benefit from the tribe's sovereign immunity and those so far removed as to be treated as mere commercial enterprises is not as clear” and that “ 'whether tribal sovereign immunity now extends to commercial activities is an important, complex and unresolved question,’ which the U.S. Supreme Court has never directly considered” (quoting In re Greene, 980 F.2d 590, 600-01 (9th Cir.1992))). Accordingly, we have looked to the various tests used by federal courts, as well as state courts, and have identified factors we believe to be most helpful in this particular instance. We have not concluded that those factors constitute an exhaustive listing or that they will provide a sufficient foundation in every instance for addressing the tribal-immunity question related to subordinate economic entities. . Our research reveals that we previously have placed the burden of demonstrating a legal entitlement to jurisdictional discovery— and the related prejudice flowing from the discovery’s denial — on the party seeking the discovery; but we have done so only in unpublished, non-binding cases. See, e.g., Xie v. Univ. of Utah, 243 Fed.Appx. 367, 375-76 (10th Cir.2007) (holding in the Rule 12(b)(1) context that the movant had failed to establish that the court's denial of her request for jurisdictional discovery had prejudiced her); cf. United States v. Cervantes, 267 Fed.Appx. 741, 744 n. 2 (10th Cir.2008) (in denying a request for a COA for a § 2255 motion, stating that the petitioner \"never renewed his motion [for discovery and an evidentiary hearing], so the responsibility for this outcome lies with him”). We are persuaded by those cases. We also note that placing the burden on the party that has" }, { "docid": "17514957", "title": "", "text": "standards as the district court: whether, with the evidence viewed in the light most favorable to the non-moving party, there are no genuine issues of material fact, so that the moving party is entitled to a judgment as a matter of law.” United States v. Petroff-Kline, 557 F.3d 285, 290 (6th Cir.2009) (citation omitted); see Federal Rule of Civil Procedure 56(c)(2). On appeal, plaintiffs maintain that the statutory trust attached when customers made payments into the cash collateral account; therefore, any money paid from that account, including funds used to pay down Arctic’s loan obligations to Comerica, included trust assets. Plaintiffs contend that Arctic breached its fiduciary duties when it used plaintiffs’ trust property to reduce its loan balance, and never drew those funds from Comerica to return plaintiffs’ maintenance escrows, in violation of the Truth-in-Leasing regulations. We agree. However, it is necessary that we first reexamine the district court’s threshold determination — challenged by Comerica— that 49 C.F.R. § 376.12(k) impressed the maintenance escrow funds with a statutory trust for plaintiffs’ benefit, thereby giving rise to plaintiffs’ solitary claim against Comerica for restitutionary relief stemming from Arctic’s alleged breach of trust. This is a novel issue. Comerica contends that while Arctic may have violated the terms of its contractual obligations by failing to return the maintenance escrow funds to the individual owner-operators, neither Arctic’s lease agreements nor the escrow provisions of the Truth-in-Leasing regulations refer to a “trust” in express terms; and, Comerica asserts, if Congress had intended to create a statutory trust for the benefit of the owner-operators, it would have explicitly incorporated the term “trust” into 49 C.F.R. § 376.12(k), as it has in other statutory schemes. Regulations promulgated to effect the purpose of a statute are to be construed in accordance with the well-established principles of statutory construction: As with all matters of regulatory interpretation, we look first to the plain and unambiguous meaning of the regulation, if any. See Henry Ford Health Sys. v. Shalala, 233 F.3d 907, 910 (6th Cir.2000) (quoting Bartlik v. U.S. Dep’t of Labor, 62 F.3d 163, 165-66 (6th Cir.1995)) (‘We" }, { "docid": "17514951", "title": "", "text": "recovery of the loan balance in the event Arctic defaulted on its loan and the collateral had to be sold. Though accounts receivable collections were credited against Arctic’s loan balance, this collateral was never liquidated, as liquidation occurs in the event of a default, and there was no default by Arctic. Owner Operator Indep. Drivers Ass’n, Inc. v. Comerica Bank, 615 F.Supp.2d 692, 695-96 (S.D.Ohio 2009) (footnotes omitted). In January 2004, plaintiffs commenced an adversary proceeding against Arctic, D & A, and Comerica in the bankruptcy court, seeking return of the escrow funds owed to the Arctic Litigation class members. The bankruptcy court lifted the automatic stay to allow the district court to complete the Arctic Litigation and liquidate the class claims, and, in May 2004, plaintiffs entered into a $5.5 million settlement agreement with Arctic and D & A, which was approved by the district court in July 2004. The settlement equaled the total amount of maintenance escrow funds, plus interest, owed by Arctic and D & A to the owner-operators; however, the settlement agreement further provided that “[i]n no event shall the [owner-operators] recover or seek to recover more than $900,000 from Arctic.” After entry of the judgment and finalization of Arctic’s plan of reorganization, the district court withdrew the bankruptcy reference over the adversary proceeding, and plaintiffs’ action against Comerica seeking enforcement of the Arctic Litigation judgment was removed to the district court. Plaintiffs thereafter twice amended their complaint, ultimately setting forth a single count seeking restitution or disgorgement of the maintenance escrow funds deposited by Arctic into Comerica’s accounts and purportedly used by Comerica to pay down Arctic’s indebtedness. In denying, in part, Comerica’s motions to dismiss plaintiffs’ complaints, the district court opined that the funds held in escrow under 49 C.F.R. § 376.12(k) were subject to a statutory trust for plaintiffs’ benefit, and plaintiffs were entitled to pursue a common law claim against Comerica for restitution. Owner Operator Indep. Drivers Ass’n, Inc. v. Comerica Inc., No. 2:05-CV-00056, 2006 WL 1339427, at *4 (S.D.Ohio May 16, 2006) (unpublished) (footnote omitted); see also Owner Operator Indep. Drivers" }, { "docid": "14341676", "title": "", "text": "requirement of Rule 23(b)(3). 3. Affirmative Defenses Nor do Comerica’s affirmative defenses defeat certification of the class. (See Amended Answer, DE # 1709.) Although Comerica claims that its affirmative defenses require individualized proof, (Opposition, at 53-60), the Court finds the defenses are susceptible to class-wide proof. For example, defenses such as waiver and ratification, under the law of the two primary states at issue (Texas and Michigan), require full knowledge of all material facts to render their actions knowing and voluntary. Plaintiffs allege and offer evidence to support the contention that Comerica failed to meaningfully disclose its overdraft practice, including, inter alia, the existence of its secret line of credit which dictated how overdraft charges were generated. (See Motion, at 15, 25-30.) If Plaintiffs can prove these facts, they will undercut Comeriea’s defenses by common evidence. These defenses may also pertain more to damages than liability, depending on how the facts develop in discovery. See, e.g., Coughlin v. Blair, 41 Cal.2d 587, 602-03, 262 P.2d 305 (1953) (discussing waiver in the context of the measure of damages, not liability) (cited in Opposition, at 27 n. 37); Watson Labs., Inc. v. Rhone-Poulenc Rorer, Inc., 178 F.Supp.2d 1099, 1114 (C.D.Cal.2001) (affirmative defenses of waiver and mitigation pertained to damages, not liability). The Eleventh Circuit has repeatedly held that individual issues relating to damages do not defeat class certification. See Allapattah Seros., 333 F.3d at 1261; Sacred Heart, 601 F.3d at 1178. Of course, whether Plaintiffs’ or Comerica’s evidence will prevail is not the appropriate inquiry at this time. Instead, it is enough to note that both Plaintiffs and Comerica plan to rely on common evidence in making their eases, which makes the case appropriate for certification as a class action. D. The Use of Subclasses The Court certifies five subclasses: one breach of contract subclass, two unjust enrichment subclasses, and two unconscionability subclasses. Plaintiffs’ Trial Plan, included in Appendix I to the Motion, contains an extensive analysis of state law breach of contract, unjust enrichment, and unconscionability. As the surveys demonstrate, variations are minimal, and are fiilly addressed by the subclasses proposed" } ]

[ { "docid": "11305818", "title": "", "text": "To be considered capable of performing a full or wide range of light work, you must be able to do substantially all of these activities. 20 C.F.R. § 404.1567(b) (emphasis added). Nelson argues that the AU’s findings regarding her physical impairments are fatally inconsistent with the regulation’s definition of light work. The ALJ made several findings regarding Nelson’s physical condition and abilities to perform work related functions. In particular, he found that Nelson suffered from degenerative joint disease in her right ankle, and was therefore incapable of “using her right foot for repetitive movement, as in operating foot controls.” The ALJ further found that Nelson would be capable of performing work related functions except those requiring: fine manipulation of her hands; bending and squatting; lifting objects weighing more than twenty pounds; or standing and walking more than one to four hours per day. Nelson does not contend that these findings are not supported by substantial evidence; rather, she suggests that they negate a conclusion that she is capable of performing light work. We are not persuaded that these findings are inconsistent with the conclusion that Nelson is capable of performing light work. With the exception of being able to use her right foot for repetitive movements, it appears that Nelson is capable of engaging in all of the activities which are by definition associated with light work. She is, for example, capable of lifting up to twenty pounds; walking and standing up to four hours per day; and using both arms and her left foot for the pushing and pulling of arm or leg controls. Nelson’s ability to engage in these activities satisfies the regulation’s requirement that the worker must be capable of performing “substantially all” of the activities associated with light work. See 20 C.F.R. § 404.1567(b). Nelson next argues that the grid should not have been applied in this case because she suffers from pain. The AU found that Nelson testified credibly as to her subjective complaints, but that the medical evidence presented did not support the conclusion that the pain of which Nelson complained would be constant," } ]

[ { "docid": "22937577", "title": "", "text": "activities is not disabled. 20 C.F.R. § 416.920(c). (3) A person whose impairment meets or equals one of the impairments listed in the regulations is conclusively presumed to be disabled. 20 C.F.R. § 416.920(d). (4) A person who is able to perform work she has done in the past is not disabled. 20 C.F.R. § 416.920(e). (5) A person whose impairment precludes performance of past work is disabled unless the Secretary demonstrates that the person can perform other work. Factors to be considered are age, education, past work experience, and residual functional capacity. 20 C.F.R. § 416.920(f). The Secretary may, in appropriate circumstances, use the Medical Vocational Guidelines (Grids), 20 C.F.R. § 404, subpt. P, App. 2, to determine whether other work exists that a claimant could perform. Heckler v. Campbell, 461 U.S. 458, 467-69, 103 S.Ct. 1952, 1957-58, 76 L.Ed.2d 66 (1983). In the present case, the AU conducted a hearing at which Reyes appeared and testified. The AU also considered medical evidence submitted by two doctors: Reyes’s treating physician and an examining physician who saw Reyes only once. Both physicians diagnosed Reyes as suffering from obesity, poorly controlled diabetes mellitus, and degenerative joint disease. The physicians differed, however, in their assessment of her functional capacity. The treat ing physician found that Reyes was disabled, whereas the examining physician found that Reyes had very minor limitations due to her impairments. The AU considered Reyes’s testimony and the medical evidence and found that Reyes does not have an impairment or combination of impairments that dictates an automatic finding of disability under the Social Security Act. He found that Reyes’s testimony regarding her pain and physical limitations was credible when viewed in the light of objective medical evidence. He concluded that she could not return to her former work as a farm laborer but that she did have the residual functional capacity to perform sedentary work. The AU then applied the Grids to determine whether jobs that Reyes could perform exist in the national economy. Because of Reyes’s advancing age, limited education, and lack of transferable work skills, the Grids dictated" }, { "docid": "15407288", "title": "", "text": "and awarded her widows’ benefits. However, Finkelstein lost her entitlement to widows’ benefits in December of 1982 when she remarried. Under the law as it stood at that time, widows who remarried before age sixty no longer qualified for widows’ benefits. In March of 1983, Congress enacted a law that restored benefits to remarried widows. Finkelstein reapplied for widows’ benefits in November of 1983 in order to receive them once the new law took effect. In reviewing Finkelstein’s second application, the Secretary subjected her to a de novo disability determination. On September 12, 1984, Finkelstein’s application for widows’ benefits was the subject of a hearing before an Administrative Law Judge (AU). See Administrative Record (A.R.) at 16. At the hearing, Fink-elstein testified that she suffers severe chest pain three to four times per week. See id. at 29. She stated that she can only walk half a block before experiencing pain that she described as a tightness in her chest. See id. at 30, 41. She further testified that she is confined to the first floor of her apartment, see id. at 34, and that she relies upon her husband and her daughter to do virtually all of the work at home, see id. at 40. Finkelstein also introduced medical evidence at the hearing. See id. at 19. The medical evidence included doctors’ opinions that she suffers from two heart ailments: myocardial ischemia and mitral valve prolapse. The AU denied Finkelstein’s reapplication for widows’ benefits in a written decision dated September 28, 1984. See id. at 10-13. In accord with the regulatory practice the Secretary has prescribed for evaluating a widow’s application for benefits, the AU compared Finkelstein’s medical condition to a list of 125 listed physical and mental illnesses and abnormalities that the regulations presume prevent a person from engaging in any gainful activity. In Fink-elstein’s case, the AU focussed his comparison upon listing 4.04, entitled “Ischemic Heart Disease.” See 20 C.F.R. Part 404, Subpart P, Appendix 1 (Part A), § 4.04. The AU held that Finkelstein’s impairments did not match the requirements contained in the listing for Ischemic" }, { "docid": "3951861", "title": "", "text": "pain of cardiac origin and that claimant’s description of his chest pain was not clinically characteristic of ischemic heart disease. Dr. Tolins nonetheless concluded that claimant’s activities were limited by his chest pain. Neutral medical advisor Dr. Andrew M. Steiner testified at the administrative hearing that claimant’s chest pain was out of proportion to the medical findings and that while claimant might be limited to some degree by chest pain, he could perform sedentary work that was not highly stressful. Claimant testified that on a typical day he spends most of his time watching television and occasionally he walks his dog. He stated that he does no housework, and although he occasionally does the grocery shopping with his wife, the heaviest item he can lift is a five pound bag of dog food. Claimant stated that he sometimes gets angina attacks when watching an exciting movie or sports event. On January 6, 1989, following the administrative hearing, the AU denied claimant’s application for benefits. The AU found that claimant had a history of severe past myocardial infarction and that he suffered from mild coronary artery disease which prevented him from performing his past work. However, the AU determined that claimant did not suffer a listed impairment, was not disabled by pain, and could perform light work. Accordingly, benefits were denied. The decision of the AU was affirmed by the district court on August 8, 1990. DISCUSSION Rappoport asserts several challenges to the AU’s ruling, including a claim that his subjective complaints of pain were not properly reviewed under the standards of Polaski v. Heckler, 751 F.2d 943, 948 (8th Cir.1984) (subsequent history omitted). We must uphold the AU’s denial of benefits if it is supported by substantial evidence on the record as a whole. Burns v. Sullivan, 888 F.2d 1218, 1219 (8th Cir.1989) (per cu-riam). Under Polaski, the absence of an objective medical basis which supports the subjective complaints of pain is just one factor to be considered in evaluating the credibility of a claimant’s subjective complaints of pain. Polaski, supra, 751 F.2d at 948. The AU must also consider" }, { "docid": "7450544", "title": "", "text": "pain free in all joints. Although she could find no known provocating factors to Pugh’s chest pain, she diagnosed “hypertensive cardiovascular disease with complaints of chest pain that appeared to be noncardiac in origin” and “by history, emphysema.” In June of 1985, Dr. Long again examined Pugh. She again noted hypertension, moderate obstructive lung disease, possible restrictive lung disease, elevated blood pressure, and an abnormal EKG. The etiology of Pugh's chest pains was unclear and “possibly noncardiac in origin.” Her pulmonary testing revealed findings which almost, but not quite, equalled the Listing of Impairments for pulmonary impairments. The ALJ also considered the opinions of two nontreating physicians. In June of 1985, Dr. Kim examined the medical evidence of record and concluded that Pugh retained the residual functional capacity to lift or carry up to twenty-five pounds frequently and up to a maximum of fifty pounds. He thought that Pugh could stand or walk six hours and sit six hours of a typical eight hour work day, and that Pugh was capable of pushing and pulling hand and foot controls of up to fifty pounds. Dr. Kim further opined that Pugh was able to tolerate fumes generally associated with normal working conditions. On November 20, 1985, Dr. Bernet also reviewed the evidence of record and agreed with Dr. Kim’s conclusions, although Dr. Bernet added a limitation that Pugh should avoid “excessive” dust and fumes. The ALJ also considered the vocational evidence of record. Jeff Edmonds’ July, 1985 report supported Dr. Kim and Dr. Bernet’s opinions. The Vocational Assessment Specialist opined that Pugh could perform other “medium” work in the national economy, based upon Pugh’s RFC, his age, education and prior work experience. He likewise opined that Pugh should avoid “excessive” dust and fumes and suggested numerous jobs which he thought Pugh could perform. Based upon the foregoing evidence, the AU concluded that the evidence indicated that Pugh could perform at least “light” work prior to qualifying for the disability presumption in November, 1985. Thereafter, the AU referred to the grid to determine whether Pugh was disabled. The grid directed a finding" }, { "docid": "12319979", "title": "", "text": "suffered from severe polymyalgia rheumatica, but did not have an impairment or combination of impairments listed or equal to those found in App. 1, Subpt. P, Reg. No. 4. The AU denied Johns benefits because he concluded that she retained the residual functional capacity to perform work of a sedentary nature, such as her past work as a payroll clerk. The AU concluded that Johns’ impairment did not prevent her from performing her past relevant work and therefore she was not disabled. The AU rejected Dr. Ross’ conclusions regarding Johns’ ability to work, and Johns’ allegations of chronic pain of a disabling nature. Johns’ request for review by the Appeals Council was denied. On appeal, Johns first contends that there is insufficient evidence to substantiate the AU’s conclusion that, despite her severe impairment, she retains the residual functional capacity to perform her past relevant work. Specifically, Johns argues that the AU erroneously rejected the opinion of Dr. Ross, her treating physician, and unduly relied upon the report of Dr. Sanford Cobb, a non-examining physician. Second, Johns claims that the AU failed to consider properly her allegation of disabling pain. We find merit only in Johns’ second claim and remand the case for further findings consistent with this opinion. II. DISCUSSION A claimant is entitled to disability benefits when she is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment____” 42 U.S.C. § 423(d)(1)(A) (1982). The claimant bears the initial burden of proving that she is unable to perform her previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir.1986). It is well established that “[i]n determining whether the claimant has satisfied this burden, the examiner must consider four factors: (1) objective medical facts or clinical findings; (2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the claimant’s age, education, and work history.” See, e.g., id. at 1005 (citation omitted). We must uphold the decision of the AU if it is supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 1422, 1427, 28" }, { "docid": "12913838", "title": "", "text": "required to meet or equal the requirements set forth in the Social Security Regulations and that there was no medical evidence indicating any of Hughes’s impairments met the requirements of the Regulations. Although the ALJ concluded that Hughes could not return to her past relevant work, he concluded that she retained the residual functional capacity to perform sedentary and light jobs with certain limitations, in large part, because the ALJ found that Hughes’s statements regarding her impairments and their impact on her ability to work were not entirely credible in light of the medical records and reports of treating and examining physicians. Thus, the ALJ concluded that Hughes was not disabled within the meaning of the Social Security Act. However, in a Report and Recommendation filed on August 18, 2000, Judge Zoss concluded that the ALJ based his credibility determinations on his flawed analysis of the first Polaski factor, the claimant’s daily activities, and having done so, had then failed to evaluate Hughes’s subjective complaints in light of the remaining Polaski factors. Contrary to the ALJ’s conclusions, Judge Zoss found that the record as a whole supports Hughes’s subjective complaints about her pain and the limitations it imposes upon her and that the ALJ did not properly evaluate Hughes’s credibility. Moreover, Judge Zoss concluded that the evidence in the record as a whole provided substantial evidence that Hughes is disabled and that the Commissioner had failed to meet his burden of proving that Hughes can perform substantial gainful activity despite her impairments. Judge Zoss therefore recommended that the court reverse the ALJ’s decision and remand this case to the Commissioner for an award of benefits in an appropriate amount. B. The Commissioner’s Objections In McPherson and Flugum, the Commissioner’s objections, in their entirety, consist of the following: Defendant objects to that portion of the Magistrate Judge’s Report and Recommendation wherein he states that, at step five of the sequential evaluation process, the Commissioner has a two-prong burden to prove, first, that the claimant has the residual functional capacity (“RFC”) to do other kinds of work, and second, that other work" }, { "docid": "23187998", "title": "", "text": "Secretary’s finding that Dixon was not disabled. Specifically, Dixon asserts that there was not substantial evidence to support the AU’s findings that her medical impairment did not meet or equal a listed impairment, that she could perform light work, and that her nonexertional limitations did not preclude reference to the medical-vocational guidelines. Finally, Dixon asserts that the AU erred in categorizing her as literate under the grids. In reviewing such findings of fact, we are not asked to reweigh the evidence or try the issues de novo, but only to determine whether there was substantial evidence in the record as a whole to support the finding. Tillery v. Schweiker, 713 F.2d 601, 603 (10th Cir.1983). Substantial evidence is more than a “mere scintilla,” but less than a preponderance, and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). The record provides substantial evidence to support the AU’s determinations that Dixon’s diagnosed impairments did not meet or equal a listed impairment, and that the Medical Vocational Guidelines relevant to a residual functional capacity for light work were applicable to her. Dixon claimed impairments including myasthenia gravis, carpal tunnel syndrome, hyperthyroidism, high blood pressure, arthritis, and heart disease. Medical examinations and tests indicate that the effects of these conditions were mild, and well-controlled by low dosages of medication without negative side effects. Although Dixon and her sister testified to her disabling pain, dizziness and muscle weakness, the medical reports provided little corroboration or support for her contention that her condition precluded light work. Dixon was able to perform to near-normal levels in cardiovascular exercise tests; other tests revealed only minor muscle weakness and nerve impairment. Examination reports over time did not indicate progressive deterioration of Dixon’s condition. On this medical record, we cannot reverse the AU’s finding that Dixon was capable of performing a full range of light work, not significantly compromised" }, { "docid": "23021560", "title": "", "text": "been using a Yentalin inhaler and taking several medications, including Ceclor and Theodur. Three or four times each day, she must go through an elaborate postural drain procedure in order to clear her lungs of mucus. She testified that she experiences shortness of breath simply from walking in her house and that she can stand or sit for only very short periods of time. In addition, she testified that she was unable to bend over to lift and she cannot carry her garbage, groceries or laundry. Rodriguez was examined by several doctors between March 1982 and August 1985. With only one exception, all of the examining physicians agreed as to Rodriguez’ objective physical condition and the impairments from which she suffered. The AU found that “[t]he medical evidence establishes that the claimant has ... bronchitis, bronchiectasis, asthma, allergic rhinitis and recurrent maxillary and frontal sinusitis.” Of the physicians who examined Rodriguez, only Dr. T. Pettinger, her treating physician, expressed an opinion on the type and amount of work that she was capable of performing. He concluded that Rodriguez could perform only sedentary or light work for a maximum of four hours per day. Dr. Montijo, who examined Rodriguez at the request of the Secretary, did not express any opinion as to Rodriguez’ residual functional capacity. The AU discounted Dr. Pettinger’s opinion, and concluded that Rodriguez has “the residual functional capacity to perform ... sedentary work on a sustained basis, with an additional environmental restriction against exposure to excessive amounts of dust, fumes, etc.” Because the AU concluded that Rodriguez could engage in substantial gainful activity, her request for disability benefits was denied. DISCUSSION I For Rodriguez to qualify for Social Security disability benefits, she must establish that her physical impairments prevent her from engaging in substantial gainful activity. 42 U.S.C. § 423(d)(1)(A) (Supp. 1988). The impairments must be proved by medically acceptable clinical or laboratory diagnostic techniques and be expected to last for a continuous period of at least 12 months. 42 U.S.C. §§ 423(d)(3) and (d)(1)(A) (Supp.1988). Rodriguez has the burden of establishing that she is disabled. However, the" }, { "docid": "470520", "title": "", "text": "Her other complaints include hypertension, frequent headaches, and chronic bronchitis. Varney has not worked since December 1981. Varney applied for Social Security disability benefits in May 1983, claiming a disability onset date of December 81,1981. Her application was denied initially and on reconsideration. Varney then requested a hearing, which was held before an Administrative Law Judge (“AU”) on October 15, 1984. At the hearing, Varney testified that she experienced constant lower back pain and constant headaches. She stated that thirty to forty minutes of light housework would bring on extreme fatigue and chest pains, and that on at least four to five days every month she was too tired to leave her house. She also testified that her legs became very painful after walking two or three blocks; that she could neither sit nor stand for extended periods without becoming uncomfortable and that she was not comfortable at all sitting in a straight chair; and that any lifting would cause chest pains. Varney further testified that she was taking a range of medications that caused side effects ranging from fatigue to nausea, swollen ankles, diarrhea, and constipation. Based on the medical evidence, the AU found that Varney suffered from cardiac artery disease, aftereffects of two myocardial infarctions and cardiac bypass surgery, hypertension, chronic cervical and lumbar strain, and headaches; he also determined that she could not perform her past relevant work. However, he found that Var-ney could perform the full range of sedentary work and that the skills required for her previous jobs were transferable to available jobs that she remained capable of performing. Applying Rule 201.15 of the Medical Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2 (1987) (the “grids”), the AU concluded that Varney was not disabled. In drawing this conclusion, the AU found that Varney’s pain testimony was “exaggerated over what is corroborated by the weight of the objective medical evidence” and was not credible. He also found that her treating physicians’ opinions that Varney was completely disabled were contradicted by the medical evidence and by the evidence concerning economic and social factors. Varney appealed" }, { "docid": "10351217", "title": "", "text": "impairment. At the hearing, Mrs. Jackson testified that she was unable to do sustained work of any kind. Her treating physician filed a detailed report in which he outlined her various disabilities and concluded by stating: “I feel that it is impossible for her to carry out any gainful employment now and for the foreseeable future because of the extreme severity of her heart disase [sic].” The administrative law judge relied on the statement of Dr. Rosecan in finding that Jackson was not disabled and that she could do sedentary work. Dr. Rosecan summarized his findings as follows: In summary, Odessa Jackson has hypertensive cardiovascular disease. There is probably arteriosclerotic heart disease. She has chest pains which are compatible in many respects with angina pectoris. The positive Treadmill stress test would help support this diagnosis of angina pectoris although she did not have chest pain during this particular test for this degree of exercise. There is no cardiac enlargement, pulmonary congestion or pleural effusion. There is no evidence of frank congestive heart failure at present. She would have early Class III functional capacity of the American Heart Association classification as far as the heart is concerned. She has a history of bronchitis. * * * She has a history of hyperthyroidism treated with radioactive iodine and then apparently developed hypothyroidism. She was placed on thyroid replacement therapy which [she] described receiving at present although her medication was not brought in for accurate identification. She feels some of the symptoms are similar to those of hyperthyroidism but this probably relates to the type of palpitations she experiences. I would suggest thyroid evaluation and accurate identification of her current medication. She has chronic otitis media reportedly unresponsive to oral antibiotics. * * * She had total abdominal hysterectomy for fibroid tumor. She has arthritic complaints in the knees, ankles and hips. She has degenerative joint disease with discomfort but no significant functional loss of individual joints. Dr. Rosecan’s findings were supplemented by an acceptable treadmill test conducted pursuant to 20 C.F.R., Chapter III, Appendix 1, Part A, Section 4.00G. Properly read, this" }, { "docid": "10468796", "title": "", "text": "morbid obesity. Dr. Cohn noted that “the stress test could not be performed since the patient could not tolerate the exercise,” and stated additionally that plaintiff was “being followed at the Harlem Hospital Chest Clinic every four to six weeks.” Also in the record are three residual functional capacity assessments (“RFCA’s”) issued between July 11, 1984 and January 24, 1985 by state reviewing physicians and based exclusively on reviews of plaintiff’s medical records. These RFCA’s, with minor limitations, found plaintiff to be capable of a range of activity —standing, walking, sitting, pushing, pulling and occasional lifting — which would enable her to perform some kind of substantial, gainful work. The third RFCA stated that, because of plaintiff’s obesity, she would be capable of performing only “medium work.” Plaintiff was represented before the AU by a paralegal. The AU determined that plaintiff presented medical evidence of morbid obesity, controlled hypertension, controlled bronchial asthma, arthralgia and a history of sarcoidosis, without clinical findings. The AU concluded that plaintiff did not suffer “an impairment or combination of impairments listed in, or medically equal to one listed in” Part A of Appendix 1, 20 C.F.R. Part 404, Subpart P; that plaintiff’s impairments “do not prevent [her] from performing her past relevant work”; and that Dr. Washington’s opinion that plaintiff “should not return to work” was entitled to little weight because the doctor “did not offer any clinical findings in support of [that] opinion but merely restated what he was told.” The Magistrate decided that the AU did not properly substantiate his failure to accord any weight to the opinion of Dr. Washington, as a treating physician, that plaintiff “should not return to work.” The Magistrate cites Schisler v. Heckler, 787 F.2d 76 (2d Cir.1986), for the proposition that “there is no requirement that the physician’s medical testimony be supported by objective clinical or laboratory findings.” Id., at 81-82 n. 2. The Magistrate maintains, additionally, that the ALJ failed to assist the plaintiff affirmatively in developing the record and that the ALJ ignored, without explanation, other evidence consistent with plaintiff’s claim. Defendant objects to the" }, { "docid": "12109306", "title": "", "text": "we hold that the regulation prohibiting the purchase of coronary arteriography is not arbitrary and capricious. This does not remove the apparent conflict between the Secretary’s regulation and the rule developed in Beeves and Ford. Upon examination of the source and context of the rule, however, we are convinced that the Secretary’s regulation is not in tension with it. To illustrate, we return to Ford, in which the Court said: In fulfilling his duty to conduct a full and fair inquiry, the administrative law judge is not required to order a consultative examination unless the record establishes that such an examination is necessary to enable the administrative law judge to render a decision. 659 F.2d at 69. In this case, the absence of a coronary arteriogram made it impossible for the AU to determine with absolute certainty that Holladay does not suffer from ischemic heart disease. Yet the statute does not require absolute certainty; it requires only substantial evidence to sustain the Secretary’s findings. The absence of an arteriogram did not render the AU incapable of making an overall disability determination. It caused him only to proceed beyond the third step of the sequential evaluation process. Without in any way retreating from the rule announced in Ford and Reeves, we conclude that the AU did not err in denying Holladay’s request for a consultative examination. In completing his evaluation of Holla-day’s claim of disability, the AU concluded that Holladay can perform a full range of sedentary work activity in spite of her complaints of chest pain, knee pain, possible angina pectoris, shortness of breath and episodic dizziness. The AU relied on the residual functional capacity assessment which Dr. Vora completed in support of Holladay’s application for SSI benefits. On the basis of Holladay’s residual functional capacity to perform sedentary work, the AU then resorted to the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpt. P, App. 2 (“the Grids”) to conclude that Holla-day is not disabled. Holladay challenges the AU’s conclusions regarding her residual functional capacity because she claimed to have a non-exertional impairment (i.e., pain) that limits her ability to" }, { "docid": "12109298", "title": "", "text": "three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of “not disabled.” 20 C.F.R. § 416.920(aMf). McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.1986). The third of these questions derives from 20 C.F.R. § 416.920(d), which provides: When your impairments) meets or equals a listed impairment in Appendix 1. If you have an impairments) which meets the duration requirement and is listed in Appendix 1 [to 20 C.F.R. Part 404, Subpart P] or is equal to a listed impairments), we will find you disabled. ... As the regulation’s language indicates, one who has a “listed” impairment for the required duration is automatically found disabled. The “listed” impairments related to heart disease are set forth in 20 C.F.R. Part 404, Subpt. P, App. 1, 4.00(A): Severe cardiac impairment results from one or more of three consequences of heart disease; (1) congestive heart failure; (2) ischemia (with or without necrosis) of heart muscle; (3) conduction disturbances and/or arrhythmias resulting in cardiac syncope. In this case, the AU found that Holladay may have ischemic heart disease but concluded that the evidence before him did not confirm such a diagnosis. The AU reviewed the relevant medical evidence as follows: [T]he claimant consulted her treating physician, Dr. Amit Yora, in September 1984, when she began to experience severe chest pain radiating into her left arm which had become less responsive to treatment and she was experiencing increasingly easy fatigability_ Dr. Yora suspects that claimant has suffered a prior myocardial infarction, yet, that is not confirmed by the diagnostic or laboratory tests.... ... Dr. Vora ... opined possible ischemic heart disease, yet he admits that none of the evidence confirms this diagnosis and the doctor felt that further testing in the form of an arteriogram would be a more positive approach diagnostically. Documentary Exhibits at 11. Because the available medical evidence did not reveal that Holladay suffers from ischemic heart disease, the AU concluded that Holladay could not be found automatically disabled pursuant to 20 C.F.R. § 416.920(d). We review the AU’s" }, { "docid": "15407289", "title": "", "text": "floor of her apartment, see id. at 34, and that she relies upon her husband and her daughter to do virtually all of the work at home, see id. at 40. Finkelstein also introduced medical evidence at the hearing. See id. at 19. The medical evidence included doctors’ opinions that she suffers from two heart ailments: myocardial ischemia and mitral valve prolapse. The AU denied Finkelstein’s reapplication for widows’ benefits in a written decision dated September 28, 1984. See id. at 10-13. In accord with the regulatory practice the Secretary has prescribed for evaluating a widow’s application for benefits, the AU compared Finkelstein’s medical condition to a list of 125 listed physical and mental illnesses and abnormalities that the regulations presume prevent a person from engaging in any gainful activity. In Fink-elstein’s case, the AU focussed his comparison upon listing 4.04, entitled “Ischemic Heart Disease.” See 20 C.F.R. Part 404, Subpart P, Appendix 1 (Part A), § 4.04. The AU held that Finkelstein’s impairments did not match the requirements contained in the listing for Ischemic Heart Disease. Further, the AU held that her impairments did not equal listing 4.04 because her condition did not present medical findings equal in severity to all the criteria contained in listing 4.04. The AU then noted that Finkelstein failed to match or equal any of the remaining 124 listings. See A.R. at 12. As a result, the AU denied Finkelstein’s application for widows’ benefits without considering whether her residual functional capacity nevertheless rendered her unable to perform any gainful activity. Finkelstein then requested review of the AU’s decision from the Social Security Administration’s Appeals Council. The Appeals Council denied the request for review, leaving the ALJ’s decision as the Secretary’s final decision upon her claim. See id. at 3. On January 22, 1985, Finkelstein filed suit in the United States District Court for the District of New Jersey. In her complaint, she asked the district court either to “award appropriate benefits” or “to remand this matter to the Secretary for additional hearing.” App. at 4. On February 16, 1988, the district court issued its" }, { "docid": "10852540", "title": "", "text": "lifting no more than twenty pounds, standing or walking no more than six hours a day, sitting no more than six hours a day, and that she was precluded from working around high voltage equipment. It was reported that Gunnels complained of sharp chest pain and shortness of breath brought on by activities such as sweeping and climbing stairs. At an administrative hearing on April 18, 1986, Gunnels testified that she is five feet seven inches tall and weighs one hundred twenty-five pounds. She does a minimal amount of housework with her daughter’s help, reads, and watches television. She stated that at her doctor’s suggestion she walks, at her own pace, one mile or more a day, and that she does not pick up objects or walk up stairs. She described her circulation as “not that good” and stated she could not sit in one position very long. Gunnels testified that she suffers from shortness of breath brought on by physical activity or stress, from stress-induced pain in the form of muscle spasms in her chest, and from headaches due to her medication. She also testified that she does not engage in any activity due to her daily fear that activity will exacerbate her condition. Gunnels indicated that she cannot communicate with people without experiencing stress. Because she fears a heart attack brought on by stress, Gunnels stated that she could not return to any of her former occupations. When the AU stated that he presumed Gunnels’ previous position as a switchboard operator or receptionist was a sedentary job and asked whether she could return to that job, Gunnels responded that she could not. The AU concluded that Gunnels had not engaged in substantial gainful activity since February 15, 1984, and that the medical evidence established that Gunnels suffered from the severe impairments of organic heart disease and chronic obstructive pulmonary disease. Although the AU described Gunnels as unable to engage in sustained strenuous physical activity, prolonged walking in excess of one mile, lifting objects, or working around pulmonary irritants, he concluded that Gunnels retained “the residual functional capacity to" }, { "docid": "12109307", "title": "", "text": "of making an overall disability determination. It caused him only to proceed beyond the third step of the sequential evaluation process. Without in any way retreating from the rule announced in Ford and Reeves, we conclude that the AU did not err in denying Holladay’s request for a consultative examination. In completing his evaluation of Holla-day’s claim of disability, the AU concluded that Holladay can perform a full range of sedentary work activity in spite of her complaints of chest pain, knee pain, possible angina pectoris, shortness of breath and episodic dizziness. The AU relied on the residual functional capacity assessment which Dr. Vora completed in support of Holladay’s application for SSI benefits. On the basis of Holladay’s residual functional capacity to perform sedentary work, the AU then resorted to the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpt. P, App. 2 (“the Grids”) to conclude that Holla-day is not disabled. Holladay challenges the AU’s conclusions regarding her residual functional capacity because she claimed to have a non-exertional impairment (i.e., pain) that limits her ability to work. See Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir.1985). She contends that the AU could not have adequately assessed her residual functional capacity without securing the testimony of a vocational expert (“VE”). This court has held that exclusive reliance on the Grids is inappropriate where non-exertional impairments prevent the performance of basic work skills. See Francis, 749 F.2d at 1566; Walker v. Bowen, 826 F.2d 996, 1003 (11th Cir.1987) (per curiam). We have also acknowledged, however, that the testimony of a VE is only necessary if the record is inconclusive as to a claimant’s residual functional capacity. See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir.1986). Holladay has not challenged the AU’s interpretation of Dr. Vora’s assessment of her ability to do work-related activities. Indeed, Dr. Vora’s assessment is consistent with the Secretary’s “sedentary work” classification, 20 C.F.R. § 416.967(a). Under these circumstances, we are compelled to hold that the AU was free to complete the evaluation process without the testimony of a VE. AFFIRMED. . The Secretary’s regulations define sedentary work" }, { "docid": "12913837", "title": "", "text": "was evaluated according to the Polaski factors. Thus, Judge Zoss concluded that the ALJ’s determination that Castellaw retains the residual functional capacity to work is not supported by the record and the ALJ improperly discounted Castellaw’s testimony. Judge Zoss instead concluded that the record establishes that Castellaw has suffered from a disability since March 4, 1996, and that she is entitled to benefits beginning on that date. Therefore, Judge Zoss recommended that judgment be entered in favor of Castellaw and against the Commissioner. In the fifth case now before the court on the Commissioner’s objections to a Report and Recommendation, Hughes v. Apfel, No. C 99-4069-MWB (N.D.Iowa), plaintiff Robyn L. Hughes seeks review of denial of her application for SSI benefits for a disability beginning on December 1, 1995. Hughes contends that she has a disability caused by fibromyalgia, in particular relating to pain in her neck, lower back, and all four extremities, as well as headaches. The ALJ found that Hughes’s severe impairments were not attended with the specific clinical signs and diagnostic findings required to meet or equal the requirements set forth in the Social Security Regulations and that there was no medical evidence indicating any of Hughes’s impairments met the requirements of the Regulations. Although the ALJ concluded that Hughes could not return to her past relevant work, he concluded that she retained the residual functional capacity to perform sedentary and light jobs with certain limitations, in large part, because the ALJ found that Hughes’s statements regarding her impairments and their impact on her ability to work were not entirely credible in light of the medical records and reports of treating and examining physicians. Thus, the ALJ concluded that Hughes was not disabled within the meaning of the Social Security Act. However, in a Report and Recommendation filed on August 18, 2000, Judge Zoss concluded that the ALJ based his credibility determinations on his flawed analysis of the first Polaski factor, the claimant’s daily activities, and having done so, had then failed to evaluate Hughes’s subjective complaints in light of the remaining Polaski factors. Contrary to the" }, { "docid": "18746208", "title": "", "text": "reveals that appellant achieved more than 85 per cent of the maximum predicted heart rate. The applicable listings determined, the appropriate analysis is whether substantial evidence exists pursuant to the results of the treadmill test that appellant failed to meet any of the four listings described in 4.04(A) of Appendix 1 for ischemic heart disease. The exercise stress test revealed a heart rate of 165 without angina. From appellant’s resting EKG of the anterior myocardial infarction and complete right bundle branch block he experienced no further ST-T changes. Appellant experienced normal blood pressure response to the exercise and developed no chest pain. The examining physician conducting the test assessed the test as negative for myocardial ischemia. The test was discontinued, not because of cardiac problems, but because of shortness of breath and fatigue. Though developing what the examining physician termed “occasional” premature ventricular contractions and some ventricular bigamy, this resolved after nine to ten additional minutes of recovery and in light of the physician’s assessment regarding a lack of myocardial ischemia must be considered as insignificant. The right bundle branch block from which appellant suffers does not fall within the parameters of the section 4.04(A) listing regarding second and third degree heart blocks. There exists substantial evidence that appellant met none of the Appendix 1 listings. Appellant’s remaining contentions involve alleged errors in application of the medical-vocational guidelines set forth in 20 C.F.R. Part 404, Subpart P, Appendix 2. If a claimant does not meet a listing set forth in Appendix 1, then to establish that he is disabled he must show that he has an impairment serious enough to prevent him from returning to his previous job. If a claimant carries that burden, as appellant did here, then the Secretary has a burden to prove that the claimant is capable, considering his age, education and work experience, of engaging in another kind of substantial gainful work that exists in the national economy. It is at this stage that the grids come into play. The grids apply in the following fashion: The ALJ first ascertains a claimant’s ‘residual functional capacity,’" }, { "docid": "10351216", "title": "", "text": "careful review of the entire record, we are convinced that there is a lack of substantial evidence to support the Secretary’s finding that Jackson can perform sedentary work. We, therefore, reverse and remand to the district court with directions to enter a summary judgment in favor of Jackson. In McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir.1982) (en banc), this Court reviewed the requirements for determining disability claims. In McCoy, we stated that an individual is totally disabled and eligible for disability benefits under the Social Security Act if he or she is not currently engaged in substantial gainful activity and is suffering from a severe impairment. If the particular impairment is one that is listed in Appendix I to Subpart P of the Medical-Vocational Guidelines, the claimant is disabled on the basis of the medical evidence alone. See id.; 20 C.F.R. § 404.-1520(d) (1982). Our review of the evidence presented and the tests conducted by a government employed examining physician, Dr. Rosecan, convinces us that Mrs. Jackson is suffering from such a listed impairment. At the hearing, Mrs. Jackson testified that she was unable to do sustained work of any kind. Her treating physician filed a detailed report in which he outlined her various disabilities and concluded by stating: “I feel that it is impossible for her to carry out any gainful employment now and for the foreseeable future because of the extreme severity of her heart disase [sic].” The administrative law judge relied on the statement of Dr. Rosecan in finding that Jackson was not disabled and that she could do sedentary work. Dr. Rosecan summarized his findings as follows: In summary, Odessa Jackson has hypertensive cardiovascular disease. There is probably arteriosclerotic heart disease. She has chest pains which are compatible in many respects with angina pectoris. The positive Treadmill stress test would help support this diagnosis of angina pectoris although she did not have chest pain during this particular test for this degree of exercise. There is no cardiac enlargement, pulmonary congestion or pleural effusion. There is no evidence of frank congestive heart failure at present." }, { "docid": "23187999", "title": "", "text": "L.Ed. 126 (1938)). The record provides substantial evidence to support the AU’s determinations that Dixon’s diagnosed impairments did not meet or equal a listed impairment, and that the Medical Vocational Guidelines relevant to a residual functional capacity for light work were applicable to her. Dixon claimed impairments including myasthenia gravis, carpal tunnel syndrome, hyperthyroidism, high blood pressure, arthritis, and heart disease. Medical examinations and tests indicate that the effects of these conditions were mild, and well-controlled by low dosages of medication without negative side effects. Although Dixon and her sister testified to her disabling pain, dizziness and muscle weakness, the medical reports provided little corroboration or support for her contention that her condition precluded light work. Dixon was able to perform to near-normal levels in cardiovascular exercise tests; other tests revealed only minor muscle weakness and nerve impairment. Examination reports over time did not indicate progressive deterioration of Dixon’s condition. On this medical record, we cannot reverse the AU’s finding that Dixon was capable of performing a full range of light work, not significantly compromised by her nonexertional limitations or by restrictions against heights and working around dangerous moving machinery, and his consequent recourse to the Secretary’s Medical Vocational Guidelines, the “grids.” The crucial question on appeal is whether the AU erred in categorizing Dixon as literate under the grids. As we explain below, that finding is necessary to the AU’s conclusion, adopted by the Secretary, that Dixon was not disabled. We reverse because there is no substantial evidence in the record to support the AU’s finding that Dixon is literate. The Medical Vocational Guidelines, the “grids,” are a classification scheme directing a finding of “disabled” or “not disabled” based on a claimant’s age, education, work experience, and residual functional capacity to perform work (e.g., sedentary, light, medium, or heavy work). It is not contested that, for purposes of the grids, Dixon at age fifty-one was closely approaching advanced age and had no previous work experience. As we note above, there is substantial evidence in the record to support the AU’s finding that Dixon could perform a full range of" } ]

[ { "docid": "2930889", "title": "", "text": "id. at 1259. According to section 1395oo (d), the Board may review even matters “not considered by the intermediary.” This portion of the statute was considered decisive by the Seventh Circuit. See St. Mary of Nazareth Hosp. Center v. Department of Health & Human Serv., 698 F.2d 1337, 1346 (7th Cir.), cert. denied, 464 U.S. 830, 104 S.Ct. 107, 78 L.Ed.2d 110 (1983). Subsection (d) does limit the Board’s power of review to “matters covered by [a] cost report.” But it is no contradiction to say that a certain cost, though not explicitly raised before an intermediary, was covered by a cost report. The phrase “covered by a cost report” should be read broadly, in light of similar broad language elsewhere in the statute and regulations. See 42 U.S.C. § 1395oo (a) (provider may obtain a hearing “with respect to” a cost report if he is dissatisfied with the intermediary’s proposed reimbursement “for the period covered by such report”); cf 42 C.F.R. § 405.453(f) (1983) (cost reports “generally cover a consecutive 12-month period of the provider’s operations”). We believe that a cost is “covered by a cost report” if it was incurred within the period which is the subject of the report and is reflected in that report, even if it is not expressly claimed. See Bethesda Hospital, 108 S.Ct. at 1259. One question remains: must the Board consider all matters timely raised before it? The First Circuit held that the Board had discretion to hear appeals or not, relying on language in 42 U.S.C. § 1395oo (d) providing that the Board “shall have the power” to do certain things. See St. Luke’s Hosp. v. Secretary of Health & Human Servs., 810 F.2d 325, 327-28 (1st Cir.1987). We disagree. The discretionary language does not describe the Board’s power to accept or reject appeals. It describes the Board’s options once an appeal is filed. More fully quoted, section (d) provides that the Board “shall have the power to affirm, modify, or reverse a final determination ... and to make any other revisions.” The Board has no discretion to reject an appeal," } ]

[ { "docid": "4224468", "title": "", "text": "to revised NPRs. 42 C.F.R. § 405.1889 thus makes revised NPRs appeal-able to the PRRB. The structure of the Medicare regulations confirms this conclusion. The right of review created by 42 C.F.R. §§ 405.1835 & 405.1889, which allows the PRRB to review disputes between providers and intermediaries concerning revised NPRs, parallels the right of review under the statute, which allows the PRRB to review disputes arising out of initial NPRs. 42 U.S.C. § 1395oo(a). Because the regulations allow intermediaries to reopen and revise NPRs, it is logical that the provider should have some means to appeal those revisions. C. The Scope of Administrative Review in a Challenge to a Revised Notice of Program Reimbursement When a provider appeals an initial NPR under 42 U.S.C. § 1395oo(a), the scope of review is quite broad. Once the three jurisdictional prerequisites are satisfied, the PRRB has jurisdiction to review a broad range of issues. Section 1395oo(d) provides in relevant part: “The Board shall have the power to affirm, modify, or reverse a final determination of the fiscal intermediary with respect to a cost report and to make any other revisions on matters covered by such cost report (including revisions adverse to the provider of services) even though such matters were not considered by the intermediary in making such final determination.” (emphasis added). The Supreme Court has interpreted § 1395oo(d) broadly in the context of appeals of initial NPRs. “[The language of § 1395oo(d) ] allows the [PRRB], once it obtains jurisdiction pursuant to subsection (a), to review and revise a cost report with respect to matters not contested before the fiscal intermediary. The only limitation prescribed by Congress is that the matter must have been ‘covered by such cost report,’ that is, a cost or expense that was incurred within the period for which the cost report was filed [.]” Bethesda Hosp. Ass’n v. Bowen, 485 U.S. 399, 405-06, 108 S.Ct. 1255, 1259, 99 L.Ed.2d 460 (1988). See also Adams House Health Care v. Heckler, 817 F.2d 587 (9th Cir.1987), vacated, 485 U.S. 1018, 108 S.Ct. 1569, 99 L.Ed.2d 885 (1988), on remand" }, { "docid": "1731079", "title": "", "text": "was open only on that issue and not for any other issue Rutland wished to bring to its attention. § 405.1885(a) speaks of the reopening of a determination of the fiscal intermediary “with respect to findings on matters at issue.” 42 C.F.R. § 405.1889 states that a revision of a determination after reopening shall be considered “a separate and distinct determination.” Therefore, the Secretary argues, the intermediary could deny Rutland’s request to reopen on one issue while the cost report had been reopened on another issue since reopenings are issue-specific. Rutland, however, responds that since the cost report had already been reopened by the intermediary when Rutland discovered the inpatient days error and requested reopening, the intermediary erred in refusing to reopen a cost report which it had already reopened for another purpose. Rutland contends that the cost report cannot be open and not open at the same time, depending on the intention of the Secretary. Arguably, this is another shade of Rutland’s main position that the language of 42 U.S.C. § 1395oo (a) permits a provider to appeal any item of the cost report when the reimbursement amount is changed, regardless of whether that item was considered by the intermediary in reopening. The Statute It is well-settled that if language of the statute is clear, then that “plain meaning” controls. Bethesda Hosp. Ass’n v. Bowen, 485 U.S. 399, 402, 108 S.Ct. 1255, 1257, 99 L.Ed.2d 460 (1988). After the intermediary reviews a provider’s cost reports for Medicare services for each fiscal year, the intermediary issues a NPR. If a provider is “dissatisfied with a final determination ... as to the amount of total program reimbursement ... for the period covered by such report”, the provider has 180 days to request a hearing before the PRRB on any and all matters in the cost report. § 1395oo (a)(3). Upon review the PRRB 42 U.S.C. has the power to affirm, modify, or reverse a final determination of the fiscal intermediary with respect to a cost report and to make any other revisions on matters covered by such cost report (including revisions" }, { "docid": "4224466", "title": "", "text": "decision as the locus of the final determination as to the amount of total program reimbursement.” Id. at 618. It therefore looked to the Medicare regulations to determine the PRRB’s jurisdiction over revised NPRs. See also Rutland Regional Medical Ctr. v. Sullivan, 835 F.Supp. 754, 759 (D.Vt.1993) (42 U.S.C. § 1395oo(a) fails to address whether provider may appeal any item in a reopened cost report); Albert Einstein Medical Ctr. v. Sullivan, 830 F.Supp. 846, 849 (E.D.Pa.1992) (42 U.S.C. § 1395oo(a) does not resolve whether revised NPR constitutes “final determination”), aff'd, 6 F.3d 778 (3d Cir.1993); Delaware County Memorial Hosp. v. Sullivan, 836 F.Supp. 238, 243 (E.D.Pa.1991). We conclude that “final determination,” as used in § 1395oo(a), does not exclude the possibility that the statute might encompass “revised” NPRs. When a fiscal intermediary reaches a “final” resolution of a cost report, it may well have gone through several revisions. Moreover, courts have consistently held that § 1395oo(a) covers initial NPRs, even though the statute does not mention them expressly. See HCA, 27 F.3d at 617. Because the statute does not resolve whether the PRRB has jurisdiction over challenges to revised NPRs, we turn to the Medicare regulations, which provide clearer guidance on this subject. 2. Regulatory Framework The regulations governing Medicare reimbursements authorize a fiscal intermediary, at the request of a provider or on its own initiative, to reopen the provider’s annual cost report and issue a revised NPR. 42 C.F.R. § 405.1885. Related regulations permit the PRRB to review revised NPRs. See HCA, 27 F.3d at 619-20. Two regulations, read in tandem, allow a provider to appeal its fiscal intermediary’s revised NPR. 42 C.F.R. § 405.1835 grants a provider a right to a hearing before the PRRB, provided that (1) an “intermediary determination has been made with respect to the provider”; (2) the provider files a written request with the PRRB; and (3) the amount in controversy is $10,000 or more. 42 C.F.R. § 405.1835. Another regulation, 42 C.F.R. § 405.1889, defines revised NPRs as “separate and distinct” from initial NPRs, and provides that § 405.1835 hearing rights apply specifically" }, { "docid": "4224467", "title": "", "text": "the statute does not resolve whether the PRRB has jurisdiction over challenges to revised NPRs, we turn to the Medicare regulations, which provide clearer guidance on this subject. 2. Regulatory Framework The regulations governing Medicare reimbursements authorize a fiscal intermediary, at the request of a provider or on its own initiative, to reopen the provider’s annual cost report and issue a revised NPR. 42 C.F.R. § 405.1885. Related regulations permit the PRRB to review revised NPRs. See HCA, 27 F.3d at 619-20. Two regulations, read in tandem, allow a provider to appeal its fiscal intermediary’s revised NPR. 42 C.F.R. § 405.1835 grants a provider a right to a hearing before the PRRB, provided that (1) an “intermediary determination has been made with respect to the provider”; (2) the provider files a written request with the PRRB; and (3) the amount in controversy is $10,000 or more. 42 C.F.R. § 405.1835. Another regulation, 42 C.F.R. § 405.1889, defines revised NPRs as “separate and distinct” from initial NPRs, and provides that § 405.1835 hearing rights apply specifically to revised NPRs. 42 C.F.R. § 405.1889 thus makes revised NPRs appeal-able to the PRRB. The structure of the Medicare regulations confirms this conclusion. The right of review created by 42 C.F.R. §§ 405.1835 & 405.1889, which allows the PRRB to review disputes between providers and intermediaries concerning revised NPRs, parallels the right of review under the statute, which allows the PRRB to review disputes arising out of initial NPRs. 42 U.S.C. § 1395oo(a). Because the regulations allow intermediaries to reopen and revise NPRs, it is logical that the provider should have some means to appeal those revisions. C. The Scope of Administrative Review in a Challenge to a Revised Notice of Program Reimbursement When a provider appeals an initial NPR under 42 U.S.C. § 1395oo(a), the scope of review is quite broad. Once the three jurisdictional prerequisites are satisfied, the PRRB has jurisdiction to review a broad range of issues. Section 1395oo(d) provides in relevant part: “The Board shall have the power to affirm, modify, or reverse a final determination of the fiscal intermediary" }, { "docid": "4224474", "title": "", "text": "or changed”); Delaware County Memorial Hosp. v. Sullivan, 836 F.Supp. 238, 245 (E.D.Pa.1991) (provider may appeal items that were under review in revised NPR). Limiting the PRRB’s scope of review to issues the fiscal intermediary reconsidered upon reopening the NPR is consistent with the Medicare regulation governing the treatment of reopenings or revisions on appeal. 42 C.F.R. § 405.1889. In this case, the intermediary reopened the hospital’s cost report for the sole purpose of applying the RCL to malpractice insurance costs. Neither the RCL, nor components of the RCL, were at issue in the revised NPR. Furthermore, the revised NPR did not alter the RCL or any of its components. Only the RCL’s application to malpractice insurance costs was at issue in the revised NPR. Even that issue was resolved, however, in the second reopening and the hospital did not appeal this issue to the PRRB. The hospital argues that even assuming the RCL components were not “at issue” in the revised NPR, it is nonetheless entitled to appeal them to the PRRB. It contends the Secretary’s “issue-specific” interpretation of the scope of review clashes with 42 U.S.C. § 1395oo because the statute does not so limit the scope of review. The sole jurisdictional prerequisites for a PRRB hearing, insists the hospital, are those outlined in 42 U.S.C. § 1395oo(a), and the PRRB may review the “total program reimbursement due,” not just specific aspects of that reimbursement. We disagree. As discussed above, the Medicare regulations impose additional limitations on the scope of review. Moreover, allowing the provider to appeal any issue in a revised NPR would nullify the 180-day deadline for appealing the initial NPR. See 42 U.S.C. § 1395oo(a). If providers were able to call into question anything in the entire cost report, with each adjustment to the bottom fine, no matter how unrelated, they would thwart the policy of finality embodied in the appeal deadline. The hospital also argues that 42 C.F.R. § 405.1889 does not narrow the scope of review for revised NPRs. This regulation, it contends, does not require that a provider’s appeal relate to issues" }, { "docid": "6328351", "title": "", "text": "C.F.R. § 405.1801(b). The cost report is submitted to the provider’s “fiscal intermediary,” a private entity (usually an insurance company) acting as the Secretary’s agent. 42 U.S.C. § 1395h. The fiscal intermediary analyzes the cost report and issues a Notice of Program Reimbursement (“NPR”), which sets forth the total amount of reimbursement due the provider and individually lists the expenses allowed and disallowed. 42 C.F.R. § 405.1803. If the provider is dissatisfied with the NPR, it may request a hearing before the PRRB within 180 days of the issuance of the NPR. 42 U.S.C. § 1395oo(a). The PRRB may affirm, modify, or reverse the decisions of the intermediary. 42 U.S.C. § 1395oo(d). The Secretary, either on his own motion or at the request of the provider, may then review the matter within 60 days. 42 U.S.C. § 1395oo(f)(l). If the provider remains dissatisfied, it may seek review in the appropriate United States District Court within 60 days of the issuance of the final decision, whether that decision comes from the PRRB or the Secretary. 42 U.S.C. § 1395oo(f). Within three years, the NPR may be reopened on motion of the provider, the fiscal intermediary, the PRRB, or the Secretary. 42 C.F.R. § 405.1885(a). Jurisdiction for determining whether to reopen is vested exclusively in the administrative body which rendered the last decision. 42 C.F.R. § 405.-1885(c). In a case such as Einstein’s, where the fiscal intermediary has jurisdiction over the reopening, the provider may appeal to the PRRB only after the matter is officially reopened and a final determination on the proposed revision is made by the fiscal intermediary. 42 C.F.R. § 405.1889. Under the regulations, a revision is a “separate and distinct determination” for purposes of appeal to the PRRB. 42 C.F.R. § 405.1889. Facts The material facts of this case are not in dispute. I shall briefly outline them. On September 29, 1986, Einstein filed a cost report for its fiscal year 1986. In the cost report, Einstein “self-disallowed” certain costs which were not reimbursable according to the Secretary’s Provider Reimbursement Manual. However, Einstein did list three of the" }, { "docid": "4224463", "title": "", "text": "scope of review encompasses the hospital’s challenges to the RCL factors, it is necessary to discuss the PRRB’s jurisdiction over challenges to a fiscal intermediary’s revised NPR. 1. Statutory Framework The Medicare statute established the PRRB to review reimbursement determinations by fiscal intermediaries. 42 U.S.C. § 1395oo(a). Under § 1395oo(a), a health care provider that has filed a timely cost report “may obtain a hearing with respect to [its] cost report by a Provider Reimbursement Review Board” if the following jurisdictional prerequisites are met: “(1) such provider (A)(i) is dissatisfied with a final determination [of its fiscal intermediary] ... as to the amount of total program reimbursement due the provider; (2) the amount in controversy is $10,000 or more, and (3) such provider files a request for a hearing within 180 days after notice of the intermediary’s final determination [.]” The Ninth Circuit has yet to decide whether a revised NPR constitutes a “final determination” within the meaning of the statute, 42 U.S.C. § 1395oo(a). Other courts are divided on this issue. The Seventh Circuit has held that a revised NPR is a “final determination” within the meaning of § 1395oo(a). Edgewater Hosp., Inc. v. Bowen, 857 F.2d 1123, 1134 (7th Cir.1988), modified, 866 F.2d 228 (1989). Although we find that the statute by its language does not exclude the possibility that the term “final determination” includes revised NPRs, we disagree with the Seventh Circuit’s reasoning. First, in interpreting § 1395oo(a), the Seventh Circuit relied heavily on the Supreme Court’s decision in Bethesda Hosp. Ass’n v. Bowen, 485 U.S. 399, 108 S.Ct. 1255, 99 L.Ed.2d 460 (1988). See Edgewater, 857 F.2d at 1132. However, Bethesda did not address the PRRB’s jurisdiction over challenges to revised NPRs. At issue in Bethesda was the meaning of “dissatisfied,” one of the prerequisites to PRRB jurisdiction under § 1395oo(a), in the context of an initial NPR. The Supreme Court held in Bethesda that a provider satisfied this jurisdictional requirement even though it failed to include its claim in its original cost report. The Court’s decision rested on its broad reading of the scope of" }, { "docid": "4224459", "title": "", "text": "U.S.C. § 1395oo(f)(l) and 28 U.S.C. § 1331. Following the parties’ cross-motions for summary judgment, the district court granted summary judgment in favor of the Secretary. French Hosp. Medical Ctr. v. Shalala, 841 F.Supp. 1468 (N.D.Cal.1993). The hospital brought this appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291. The hospital raises several arguments on appeal. First, the hospital argues that its fiscal intermediary’s revised NPR did affect the RCL issues it seeks to appeal. Its argument is that Blue Cross, in applying the RCL to malpractice insurance costs upon reopening the cost report, had to recalculate and reapply the RCL, and thereby affected the RCL, including the wage index and covered days of care components. Second, the hospital argues that even assuming the two RCL components were not “matters at issue” in the revised NPR, it is nonetheless entitled to raise them on appeal to the PRRB. It bases this conclusion on its contention that the district court erred in accepting the Secretary’s “issue-specific” interpretation of the scope of administrative review of revised NPRs. The sole jurisdictional prerequisites for a PRRB hearing, insists the hospital, are outlined in the Medicare statute, 42 U.S.C. § 1395oo(a): (1) a final determination by the intermediary as to the total amount of program reimbursement; (2) an amount in controversy of at least $10,000; and (3) the filing of a request for a hearing within 180 days after notice of the intermediary’s final determination. 42 U.S.C. § 1395oo(a). The hospital contends that it satisfied these requirements in this case. Third, the hospital argues that the Medicare regulation governing appeals of revised NPRs, 42 C.F.R. § 405.1889, does not render the scope of review of a revised NPR narrower than that of an original NPR. It contends that the plain language of § 405.1889 grants a provider the right to appeal any aspect of an intermediary’s reimbursement determination, so long as the provider is dissatisfied with the total amount of reimbursement. This regulation, argues the hospital, does not require that a provider’s appeal relate to issues that were addressed or adjusted in the" }, { "docid": "2967072", "title": "", "text": "furnished by providers that have entered into a “provider agreement” with the Secretary. Id. §§ 1395x(u), 1395ec. The Secretary is responsible for determining reimbursement amounts and for issuing regulations defining reimbursable costs. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 506-07, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) (citing 42 U.S.C. § 1395x(v)(l)(A)). Hospitals eligible for Part A payments submit annual cost reports containing reimbursement claims to a designated fiscal intermediary, who processes claims on behalf of the Secretary. On the basis of a hospital’s cost report, the intermediary makes a final determination known as a Notice of Program Reimbursement (NPR) regarding the amount the hospital should be reimbursed for services rendered during the reporting period. 42 C.F.R. § 405.1803. If a provider is dissatisfied with the intermediary’s determination, it may request a hearing before the Provider Reimbursement Review Board (PRRB). 42 U.S.C. § 1395oo(a). In order to qualify for PRRB review, the provider must submit its hearing request within 180 days of the NPR, among other jurisdictional requirements. Id. The request must “identify the aspects of the determination with which the provider is dissatisfied, explain why the provider believes the determination is incorrect in such particulars, and be accompanied by any documenting evidence the provider considers necessary to support its position.” 42 C.F.R. § 405.1841(a)(1). If the PRRB holds a hearing, its decision is subject to review by the Secretary’s delegate, the Administrator of the Centers for Medicare and Medicaid Services (CMS). 42 U.S.C. § 1395oo(f)(1). Regulations also permit an intermediary to reopen an otherwise final cost report determination to make limited corrections. See 42 C.F.R. § 405.1885. A final determination “may be reopened with respect to findings on matters at issue” on the motion of either a provider or an intermediary, provided that the reopening request is made within three years of the initial NPR. Id. § 405.1885(a). Once a cost report determination is reopened, a provider may appeal the “separate and distinct” results of the reopening, including any adjustments made in the revised NPR. Id. § 405.1889. “Reasonable costs” reimbursable under the Medicare statute exclude any costs" }, { "docid": "4224471", "title": "", "text": "determination to which the provisions of §§ 405.1811, 405.1835 and 405.1877 are applicable.” (emphasis added). Section 405.1889’s distinction between revised and original NPRs has two effects. The regulation, read in tandem with the regulations prescribing various routes of appeal, creates a separate right of appeal for providers to challenge revised NPRs. At the same time, however, § 405.1889 limits the scope of review of revised NPRs because it mandates that they be considered “separate and distinct” for purposes of appeal. 42 C.F.R. § 405.1889 bifurcates the revised NPR from the initial NPR, thereby limiting the scope of review to issues addressed in that revised NPR. Because § 405.1889 distinguishes revised NPRs from initial NPRs for purposes of appeal, we conclude that the scope of review of a revised NPR is narrower than that of an initial NPR. Courts are divided, however, as to the PRRB’s scope of review over revised NPRs. The Seventh Circuit in Edgewater held that the PRRB may review those matters that a fiscal intermediary reconsidered upon reopening the cost report, whether or not it ultimately adjusted them in its revised NPR. 857 F.2d at 1137. In Edgewater, the provider asked its fiscal intermediary to reopen four matters in its initial NPR. When the intermediary amended one of the four items but refused to alter the other three, the provider appealed the revised NPR to the PRRB. The Seventh Circuit held that the PRRB had jurisdiction to review all four of the items the intermediary reconsidered, not just the item it adjusted. Although the Seventh Circuit suggested, further, that 42 U.S.C. § 1395oo(d) would permit the PRRB to review every aspect of the cost report, that discussion of a broader scope of review was dicta. 857 F.2d at 1134. See also Minnesota Hosp. Ass’n v. Bowen, 703 F.Supp. 780, 785 (D.Minn.1988) (holding that a provider may appeal any item contained in a revised cost report, whether or not it was reconsidered upon reopening). The D.C. Circuit took a narrower view of the scope of review in HCA, holding that a revised NPR does not open the entire" }, { "docid": "4224486", "title": "", "text": "the scope of review of initial NPRs under 42 U.S.C. § 1395oo(d) \" (emphasis added). The concurrence states that our opinion \"creates a potential for confusion and mischief in taking seriously French Hospital's argument that 42 U.S.C. § 1395oo(d) expands the PRRB's jurisdiction ” (emphasis added). The concern is misplaced; as our opinion makes clear, § 1395oo(d) does not even govern jurisdiction, much less expand it. . Although the D.C. Circuit’s holding limited review to items adjusted by the revised NPR, it left open the question \"whether a cost item must be modified on reopening or need only be reconsidered on reopening in order to become appeal-able to the Board.” 27 F.3d at 621 (emphasis added). . We need not consider the broad scope of review suggested by the Seventh Circuit in dicta, which would interpret 42 U.S.C. § 1395oo(d) to allow equal appeal rights under initial and revised NPRs. Our holding relies instead on the Medicare regulations, which, as discussed above, provide for a narrower scope of review of revised NPRs. . In this case, the RCL components the hospital seeks to appeal are clearly separate and distinct from the issue the intermediary reconsidered in the revised NPR. Thus, this case does not require us to decide the reviewability of a revised NPR that addresses a narrow issue but that indirectly affects other matters contained in the initial NPR. .These jurisdictional prerequisites are: (1) a final determination by the intermediary as to the total amount of program reimbursement; (2) an amount in controversy of at least $10,000; and (3) the filing of a request for a hearing within 180 days after notice of the intermediary’s final determination. 42 U.S.C. § 1395oo(a). KOZINSKI, Circuit Judge, concurring: I have no quarrel with the majority’s basic reasoning: 42 U.S.C. § 1395oo(a) doesn’t specifically anticipate revised NPRs and is, thus, ambiguous as to how much of a revised NPR constitutes a “final determination” for purposes of PRRB review. In 42 C.F.R. § 405.1889, the Secretary has interpreted “final determination” to refer only to the actual revisions made (and, perhaps, those explicitly requested and" }, { "docid": "4224470", "title": "", "text": "862 F.2d 1371 (9th Cir.1988). In the ease of a revised NPR, however, a different analysis of the scope of review is warranted. As discussed above, both a fiscal intermediary’s power to reopen a cost report, see 42 C.F.R. § 405.1885, and the PRRB’s authority to hear challenges to revised NPRs derive from the Medicare regulations. See 42 C.F.R. §§ 405.1835 and 405.1889. We therefore look to Medicare regulations, rather than to 42 U.S.C. § 1395oo(d), to determine the scope of review of a revised NPR. In our view, the regulations governing revised NPRs provide for a scope of review that is narrower than the scope of review of initial NPRs under 42 U.S.C. § 1395oo(d). 42 C.F.R. § 405.1889 specifies how re-openings or revisions are to be treated for purposes of appeal. Section 405.1889 provides that “[w]here a revision is made in a determination or decision on the amount of program reimbursement after such determination or decision has been reopened as provided in § 405.1885, such revision shall be considered a separate and distinct determination to which the provisions of §§ 405.1811, 405.1835 and 405.1877 are applicable.” (emphasis added). Section 405.1889’s distinction between revised and original NPRs has two effects. The regulation, read in tandem with the regulations prescribing various routes of appeal, creates a separate right of appeal for providers to challenge revised NPRs. At the same time, however, § 405.1889 limits the scope of review of revised NPRs because it mandates that they be considered “separate and distinct” for purposes of appeal. 42 C.F.R. § 405.1889 bifurcates the revised NPR from the initial NPR, thereby limiting the scope of review to issues addressed in that revised NPR. Because § 405.1889 distinguishes revised NPRs from initial NPRs for purposes of appeal, we conclude that the scope of review of a revised NPR is narrower than that of an initial NPR. Courts are divided, however, as to the PRRB’s scope of review over revised NPRs. The Seventh Circuit in Edgewater held that the PRRB may review those matters that a fiscal intermediary reconsidered upon reopening the cost report, whether" }, { "docid": "4674749", "title": "", "text": "obtain reimbursement for costs of treating Medicare patients. After the close of its fiscal year, a health care provider submits a cost report showing costs incurred during the year and the portion of those costs properly allocated to Medicare under the governing rules and regulations. The cost report is submitted to a fiscal intermediary, an agent of the Secretary of the Department of Health and Human Services (“the Secretary”). The fiscal intermediary audits the cost report to determine the amount of Medicare reimbursement for the year, then provides a Notice of Amount of Program Reimbursement (“NPR”). See 42 U.S.C. § 1395h; 42 C.F.R. §§ 421.103; 413.20; 413.60; 405.1803. The fiscal intermediary is bound by the Secretary’s regulations and instructions issued by the Health Care Financing Administration (“HCFA”). See 42 C.F.R.- § 421.100(h); see also Bethesda Hospital Assoc, v. Bowen, 485 U.S. 399, 108 S.Ct. 1255, 99 L.Ed.2d 460 (1988). A provider dissatisfied with the NPR may appeal to the Provider Reimbursement Review Board (“PRRB” or “the Board”), within 180 days if the amount in controversy is $10,000 or more. 42 U.S.C. § 1395oo (a). The PRRB may affirm, modify or reverse a final determination of the fiscal intermediary and may “make any other revisions on matters covered by such cost report (including revisions adverse to the provider of services) even though such matters were not considered by the intermediary in making such final determination.” § 1395oo (d). See also 42 C.F.R. § 405.1841. The PRRB decision is final unless the Secretary reverses, affirms or modifies the decision. 42 U.S.C. § 1395oo (0(1). An NPR “may be reopened with respect to findings on matters at issue in such determination or decision” on motion of the provider, the fiscal intermediary, PRRB or Secretary. See 42 C.F.R. § 405.1885(a). A request for reopening must be made within three years. Where a revision is made pursuant to a reopening, “such revision shall be considered a separate and distinct determination or decision.” 42 C.F.R. § 405.1889 (citing to 42 C.F.R. §§ 405.1811, 1835, 1875 and 1877). A provider can obtain judicial review of “any final" }, { "docid": "4224487", "title": "", "text": "case, the RCL components the hospital seeks to appeal are clearly separate and distinct from the issue the intermediary reconsidered in the revised NPR. Thus, this case does not require us to decide the reviewability of a revised NPR that addresses a narrow issue but that indirectly affects other matters contained in the initial NPR. .These jurisdictional prerequisites are: (1) a final determination by the intermediary as to the total amount of program reimbursement; (2) an amount in controversy of at least $10,000; and (3) the filing of a request for a hearing within 180 days after notice of the intermediary’s final determination. 42 U.S.C. § 1395oo(a). KOZINSKI, Circuit Judge, concurring: I have no quarrel with the majority’s basic reasoning: 42 U.S.C. § 1395oo(a) doesn’t specifically anticipate revised NPRs and is, thus, ambiguous as to how much of a revised NPR constitutes a “final determination” for purposes of PRRB review. In 42 C.F.R. § 405.1889, the Secretary has interpreted “final determination” to refer only to the actual revisions made (and, perhaps, those explicitly requested and refused) on reopening. Faced with an ambiguity in the statute and a reasonable agency interpretation, we must defer. I write separately to point out that the majority errs and, in so doing, creates a potential for confusion and mischief in taking seriously French Hospital’s argument that 42 U.S.C. § 1395oo(d) expands the PRRB’s jurisdiction. Section 1395oo(d) is titled “Decisions of Board” and it does grant the PRRB very broad powers to review cost reports. There’s a big difference, however, between what a reviewing body has power to do once a cost report is properly before it on appeal and what appeals are proper in the first place. Subsection (d) defines the PRRB’s powers only “once it obtains jurisdiction pursuant to subsection (a).” Bethesda Hosp. Ass’n v. Bowen, 485 U.S. 399, 406, 108 S.Ct. 1255, 1259, 99 L.Ed.2d 460 (1988). It has no bearing on a provider’s right to invoke the PRRB’s jurisdiction. The PRRB’s jurisdiction is defined entirely by subsection (a) and extends only to a “final determination” with which the provider is dissatisfied. The" }, { "docid": "18669489", "title": "", "text": "for, or reasonable cost of, those services. 42 U.S.C. § 1395f(b)(l). Commonly, reimbursement is handled by fiscal intermediaries, such as private insurance companies, who make interim payments to providers on at least a monthly basis and determine at the close of the fiscal year whether such payments exceeded or fell short of the actual amount of reimbursement that the provider was due under applicable regulations. Id. at §§ 1395g, 1395h, 1395x(v)(l)(A)(ii). Accordingly, a provider will submit an annual cost report to its fiscal intermediary who then issues a Notice of Program Reimbursement (“NPR”) -detailing the calculations of the amount of reimbursement under the Statute. The NPR is ap-pealable within 180 days to the Provider Reimbursement Review Board (“Board”), appointed by the Secretary pursuant to § 1395oo (h). Id. at § 1395oo (a). When reviewing an NPR, the Board may modify any matter covered by the provider’s cost report for the fiscal year at issue “even though such matter[] w[as] not considered by the intermediary in making such final determination.” Id. at § 1395oo (d). See also 42 C.F.R. § 405.1869 (1992); Bethesda Hosp. Ass’n v. Bowen, 485 U.S. 399, 108 S.Ct. 1255, 99 L.Ed.2d 460 (1988). A decision by the Board is potentially subject to further review by the Secretary’s delegate, the Deputy Administrator of the Health Care Financing Administration (“HCFA”). See 42 U.S.C. § 1395ÓO (f)(1); 42 C.F.R. § 1875; see also 42 C.F.R. § 405.1842 (expedited review when Board has no authority to decide the issue). If left undisturbed, the Board’s decision is reviewable, and if modified by the Secretary the latter’s decision is reviewable in the district court in which the provider is located or in the District Court for the District of Columbia. 42 U.S.C. § 1395oo (f)(1). Under the regulations an intermediary may reopen an NPR within three years of issuance. 42 C.F.R. § 405.1885. An intermediary’s decision on reopening of an NPR is reviewable by the Board if such review is requested within 180 days. Id. at §§ 405.-1889 & 405.1841(a)(1) (as incorporated by §§ 405.1835(a)(2) & 405.1889). The question we face here concerns" }, { "docid": "1731080", "title": "", "text": "a provider to appeal any item of the cost report when the reimbursement amount is changed, regardless of whether that item was considered by the intermediary in reopening. The Statute It is well-settled that if language of the statute is clear, then that “plain meaning” controls. Bethesda Hosp. Ass’n v. Bowen, 485 U.S. 399, 402, 108 S.Ct. 1255, 1257, 99 L.Ed.2d 460 (1988). After the intermediary reviews a provider’s cost reports for Medicare services for each fiscal year, the intermediary issues a NPR. If a provider is “dissatisfied with a final determination ... as to the amount of total program reimbursement ... for the period covered by such report”, the provider has 180 days to request a hearing before the PRRB on any and all matters in the cost report. § 1395oo (a)(3). Upon review the PRRB 42 U.S.C. has the power to affirm, modify, or reverse a final determination of the fiscal intermediary with respect to a cost report and to make any other revisions on matters covered by such cost report (including revisions adverse to the provider of services) even though such matters were not considered by the intermediary in making such final determinations. 42 U.S.C. § 1395oo (d). Therefore, the statute affords a dissatisfied provider the right to appeal any item in the NPR within 180 days of issuance. If the provider fails to appeal within this statutory time period, the right to appeal is lost. 42 U.S.C. § 1395oo (a)(3). The statute fails to discuss whether the provider has the right to appeal any item in a cost report which has been reopened for a specific reason within the regulatory 3-year reopening period. The statute speaks only in terms of the right to appeal the NPR. It is not clear that this right to appeal any item in the cost report is equally available whenever the cost report is successively reopened and revised. To permit the provider to appeal any item in the cost report whenever the cost report is reopened for any reason would appear to eliminate any finality which is implicit in agency determinations." }, { "docid": "5572913", "title": "", "text": "1395oo(f)(1). The provider then has 60 days to seek judicial review of the legal issue in question. 42 U.S.C. § 1395oo(f)(1). If a provider does not timely appeal the initial NPR, its cost report for that fiscal year is considered closed. Under certain circumstances, however, a closed cost report can be reopened. 42 C.F.R. § 405.1885. When an NPR is reopened and a revision is made, that revision is considered “a separate and distinct determination or decision,” i.e., it is a new final decision, subject to the appeal rights discussed above. 42 C.F.R. § 405.1889. B. French Hospital We first confronted the regulations governing the reopening of an NPR in French Hospital, 89 F.3d 1411. In that case, the fiscal intermediary reopened an initial NPR seven years after it was issued in order to reclassify the provider’s malpractice insurance costs as an administrative and general cost. Id. at 1413. After that reopening, the provider pursued an appeal to the PRRB challenging the RCL formula on the grounds that the wage index in the RCL was flawed and that the CDCA factor was inaccurate. Id. at 1414. We agreed with the Secretary that the PRRB lacked jurisdiction over the provider’s appeal. We reasoned that because a revision in the NPR is a “separate and distinct determination,” 42 C.F.R. § 405.1889, a revision must be separated from the initial NPR, and the right of appeal attaches only to the scope of the revision. Id. at 1419. This court thus joined the Seventh Circuit in holding that the PRRB has jurisdiction only over those elements of the NPR that are reconsidered by the fiscal intermediary upon reopening. Id. (citing Edgewater Hosp., Inc. v. Bowen, 857 F.2d 1123, 1134 (7th Cir.1988), modified, 866 F.2d 228 (1989)). Accord Rutland Regional Med. Ctr. v. Sullivan, 835 F.Supp. 754, 759 (D.Vt.1993); Albert Einstein Med. Ctr. v. Sullivan, 830 F.Supp. 846, 849 (E.D.Pa.1992), aff'd, 6 F.3d 778 (3d Cir.1993). We acknowledged in French Hospital that, on the facts of that case, the reclassification of malpractice insurance costs after reopening meant that the RCL had to be applied anew," }, { "docid": "4224469", "title": "", "text": "with respect to a cost report and to make any other revisions on matters covered by such cost report (including revisions adverse to the provider of services) even though such matters were not considered by the intermediary in making such final determination.” (emphasis added). The Supreme Court has interpreted § 1395oo(d) broadly in the context of appeals of initial NPRs. “[The language of § 1395oo(d) ] allows the [PRRB], once it obtains jurisdiction pursuant to subsection (a), to review and revise a cost report with respect to matters not contested before the fiscal intermediary. The only limitation prescribed by Congress is that the matter must have been ‘covered by such cost report,’ that is, a cost or expense that was incurred within the period for which the cost report was filed [.]” Bethesda Hosp. Ass’n v. Bowen, 485 U.S. 399, 405-06, 108 S.Ct. 1255, 1259, 99 L.Ed.2d 460 (1988). See also Adams House Health Care v. Heckler, 817 F.2d 587 (9th Cir.1987), vacated, 485 U.S. 1018, 108 S.Ct. 1569, 99 L.Ed.2d 885 (1988), on remand 862 F.2d 1371 (9th Cir.1988). In the ease of a revised NPR, however, a different analysis of the scope of review is warranted. As discussed above, both a fiscal intermediary’s power to reopen a cost report, see 42 C.F.R. § 405.1885, and the PRRB’s authority to hear challenges to revised NPRs derive from the Medicare regulations. See 42 C.F.R. §§ 405.1835 and 405.1889. We therefore look to Medicare regulations, rather than to 42 U.S.C. § 1395oo(d), to determine the scope of review of a revised NPR. In our view, the regulations governing revised NPRs provide for a scope of review that is narrower than the scope of review of initial NPRs under 42 U.S.C. § 1395oo(d). 42 C.F.R. § 405.1889 specifies how re-openings or revisions are to be treated for purposes of appeal. Section 405.1889 provides that “[w]here a revision is made in a determination or decision on the amount of program reimbursement after such determination or decision has been reopened as provided in § 405.1885, such revision shall be considered a separate and distinct" }, { "docid": "5572912", "title": "", "text": "the initial NPR. 42 U.S.C. § 1395oo(a), (b). The PRRB has discretion to extend the 180-day appeal period for good cause if an extension is requested within three years of the initial NPR. 42 C.F.R. § 405.1841(b). If these jurisdictional prerequisites are fulfilled and the PRRB has the authority to decide the matter at issue, 42 C.F.R. § 405.1867, the PRRB may hold a hearing and issue a decision. The Secretary’s delegate, the HCFA Administrator (the “Administrator”), may then review the PRRB’s decision, either sua sponte or upon request. 42 C.F.R. § 405.1875. The Administrator must promptly notify the parties if he intends to review the PRRB’s decision, and he must render his final decision within 60 days of the PRRB’s decision. 42 U.S.C. § 1395oo(f)(1); 42 C.F.R. § 405.1875(d) & (g). The Medicare statute also creates a process known as “expedited judicial review” (“EJR”). If the PRRB decides that it has jurisdiction over an appeal but lacks the authority to decide the controlling question of law, it may grant an EJR. 42 U.S.C. § 1395oo(f)(1). The provider then has 60 days to seek judicial review of the legal issue in question. 42 U.S.C. § 1395oo(f)(1). If a provider does not timely appeal the initial NPR, its cost report for that fiscal year is considered closed. Under certain circumstances, however, a closed cost report can be reopened. 42 C.F.R. § 405.1885. When an NPR is reopened and a revision is made, that revision is considered “a separate and distinct determination or decision,” i.e., it is a new final decision, subject to the appeal rights discussed above. 42 C.F.R. § 405.1889. B. French Hospital We first confronted the regulations governing the reopening of an NPR in French Hospital, 89 F.3d 1411. In that case, the fiscal intermediary reopened an initial NPR seven years after it was issued in order to reclassify the provider’s malpractice insurance costs as an administrative and general cost. Id. at 1413. After that reopening, the provider pursued an appeal to the PRRB challenging the RCL formula on the grounds that the wage index in the RCL was" }, { "docid": "4224488", "title": "", "text": "refused) on reopening. Faced with an ambiguity in the statute and a reasonable agency interpretation, we must defer. I write separately to point out that the majority errs and, in so doing, creates a potential for confusion and mischief in taking seriously French Hospital’s argument that 42 U.S.C. § 1395oo(d) expands the PRRB’s jurisdiction. Section 1395oo(d) is titled “Decisions of Board” and it does grant the PRRB very broad powers to review cost reports. There’s a big difference, however, between what a reviewing body has power to do once a cost report is properly before it on appeal and what appeals are proper in the first place. Subsection (d) defines the PRRB’s powers only “once it obtains jurisdiction pursuant to subsection (a).” Bethesda Hosp. Ass’n v. Bowen, 485 U.S. 399, 406, 108 S.Ct. 1255, 1259, 99 L.Ed.2d 460 (1988). It has no bearing on a provider’s right to invoke the PRRB’s jurisdiction. The PRRB’s jurisdiction is defined entirely by subsection (a) and extends only to a “final determination” with which the provider is dissatisfied. The only final determinations in this case were the revisions in the first and second revised NPRs. But French Hospital doesn’t, nor could it, claim to be dissatisfied with those revisions: The intermediary reopened its original NPR only to reimburse malpractice insurance costs and, after the second revised NPR, the hospital was reimbursed for all of these costs. The powers subsection (d) grants the PRRB with respect to cost reports properly before it thus have no application to this case; French Hospital simply didn’t invoke the PRRB’s jurisdiction to review its cost report. The majority overlooks this point and deems subsection (d) some kind of supplemental jurisdictional provision that, left unchecked, would give providers an unbridled right to demand PRRB review for any new gripes or ideas they may have about any cost report. Maj. op. at 1417-1419. Having roused a phantom dragon, the majority next forges a phantom sword to slay it: an administrative regulation that supposedly reigns in powers Congress foolishly granted the PRRB. Id. The regulation cited, 42 C.F.R. § 405.1889, doesn’t, of" } ]

[ { "docid": "22239869", "title": "", "text": "the bargain had been negotiated by another Assistant United States Attorney, and it was informed in detail why confinement at Lorton had been included as a part of the bargain. First, Lorton was not too far removed from the defendant’s home in the District of Columbia. However, this thirty-seven-year-old man had no family, though it was said that if he were put on probation and the District of Columbia Parole Board did not revoke his parole, he would consider marriage. Second, he wished the District of Columbia Parole Board, alone, to have authority to release him conditionally, and, third, he wished a training program which was available at Lorton. The question which the Court first directed to the prosecutor, who was unable to answer it, was fully answered by defense counsel and the defendant, and the reasons for the bargain fully developed. They were considered by the District Judge and rejected because he was of the opinion that Lorton’s training program was not superior to those available at federal institutions, and he was of the decided opinion that the general rehabilitation services of federal institutions were superior to those available at Lor-ton. It is true that the prosecutor never again spoke up. He did not say, “for the reasons now disclosed, I unreservedly recommend confinement at Lorton for no more than three years,” but the reasons for the recommendations had been developed in a colloquy, largely with defense counsel, and rejected. Any such additional statement by the prosecutor would only have been argumentative. In light of what transpired after-wards, I think the prosecutor’s initial inability to answer the Court’s inquiry about the recommendation of confinement at Lorton was not a failure of performance of the plea bargain. He knew what the bargain was; he stated the Government recommended its acceptance, and his inability to answer the Court’s inquiry was cured when the reasons supporting the recommendation were fully developed later in the course of the sentencing hearing. Under the circumstances, I cannot conclude that there was a failure of performance of the Government’s agreement." } ]

[ { "docid": "7472647", "title": "", "text": "induced his plea with a material misrepresentation — nondisclosure of the ATF notification and the possibility of subsequent federal prosecution. Jordan cites Santobello v. New York and Murphy v. Waterfront Commission as support for his argument of prose-cutorial misconduct. In Santobello, the defendant pleaded guilty and the prosecutor who negotiated the plea agreement agreed to make no sentence recommendation. Another prosecutor was later substituted into the case and, unaware of this agreement, recommended a sentence. The Supreme Court imputed the knowledge of one prosecutor to the other, found that the recommendation was a breach of the agreement, and invalidated the plea. Santobello, 404 U.S. at 262-63, 92 S.Ct. at 498-99. In Murphy, the State granted the defendants immunity from state prosecution and compelled their attendance at a grand jury. When the defendants refused to answer questions on the grounds that their answers might subject them to federal prosecution, the State found them in contempt. The Supreme Court reversed and held that one sovereign could not compel testimony which might subject the witness to prosecution by another sovereign. Murphy, 378 U.S. at 79, 84 S.Ct. at 1609. Unlike the prosecutors in Santobello, the state prosecutors here did not promise Jordan anything regarding federal prosecution or the use of his state guilty plea in federal court. Unlike the prosecutors in Murphy, the State’s Attorney here did not demand that Jordan relinquish a constitutional right. In failing to advise Jordan of the possibility of federal prosecution, the State made no explicit promise or misrepresentation to Jordan. The issue was not misrepresented because it was not represented at all. Cf. United States ex rel. Robinson v. Israel, 603 F.2d 635, 637-38 (7th Cir.1979) (en banc), cert. denied, 444 U.S. 1019, 100 S.Ct. 675, 62 L.Ed.2d 650 (1980) (no breach of plea when judge and prosecutor sent post-conviction letter to parole board advocating maximum incarceration under sentence imposed and plea did not address parole eligibility). Neither Santobello nor Murphy place an affirmative duty on the prosecution to discuss all possible ramifications of a defendant’s guilty plea. Rather, they prohibit false representations and mandate compliance with" }, { "docid": "15376682", "title": "", "text": "was no breach of the plea agreement. The judge asked if the defendant wished to withdraw his guilty plea, but defense counsel continued to request recusal and specific performance of the agreement. Finally, on March 3, Kurkculer was sentenced in accordance with the recommendations of the presentence report, to three years in prison on each of the three counts, to run concurrently. The court also increased Kurkculer’s sentence beyond the guideline range because of his “frivolous” objection to the presentence report. Promises, Promises The Supreme Court’s Santobello decision and our own decisions require more than good faith by the government in securing through plea bargaining a defendant’s waiver of constitutional rights. The government must keep its promises or the defendant must be released from the bargain. Thus, on remand Santobello’s possible remedies for a prosecutor’s breached agreement were specific performance or withdrawal of the bargained-for plea. In Santobello, a prosecutor inadvertently breached a colleague’s earlier agreement to make no sentence recommendation, and instead recommended the maximum sentence. The sentencing judge stated for the record that he was not influenced by the prosecutor’s mistaken recommendation but rather by the presentence report, and sentenced the defendant to the maximum prison time. The Santobello Court held that, “[Wjhen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” 404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433 (emphasis added). The Court remanded for the state court “to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be sentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty.” Id. at 263, 92 S.Ct. at 499, 30 L.Ed.2d at 433 (emphasis added). The Court obviously considered withdrawal of the plea — Santobello’s preferred remedy — more extreme than resen-tencing. It" }, { "docid": "22678757", "title": "", "text": "(including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e. g. bribes).”’ Id., at 755 (quoting Shelton v. United States, 246 F. 2d 571, 572, n. 2 (CA5 1957) (en banc) (in turn quoting 242 F. 2d 101, 115 (Tuttle, J., dissenting to panel opinion)), rev’d on other grounds, 356 U. S. 26 (1958). Thus, only when it develops that the defendant was not fairly apprised of its consequences can his plea be challenged under the Due Process Clause. Santobello v. New York, 404 U. S. 257 (1971), illustrates the point. We began by acknowledging that the conditions for a valid plea “presuppose fairness in securing agreement between an accused and a prosecutor. . . . The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known.” Id., at 261-262. It follows that when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand: “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id., at 262. Santobello demonstrates why respondent may not successfully attack his plea of guilty. Respondent’s plea was in no sense induced by the prosecutor’s withdrawn offer; unlike Santobello, who pleaded guilty thinking he had bargained for a specific prosecutorial sentencing recommendation which was not ultimately made, at the time respondent pleaded guilty he knew the prosecution would recommend a 21-year consecutive sentence. Respondent does not challenge the District Court’s finding that he pleaded guilty with the advice of competent counsel and with full awareness of the consequences — he knew that the prosecutor would recommend and that the judge could impose the sentence now under attack. Respondent’s plea was thus in no sense the product of governmental deception; it rested on no" }, { "docid": "15777629", "title": "", "text": "495, 30 L.Ed.2d 427 (1971) as support for his contention that the plea agreement was breached by the unfavorable parole recommendation. We find petitioner’s reliance on Santobello to be misplaced. The holding in Santobello required strict adherence to the specific and express terms of the plea agreement reached between the criminal defendant and the state. In the instant case, the trial judge clearly abided by the express terms of the plea agreement: Robinson was promised and received a ten to forty year prison term in return for his guilty plea. The prosecutor made no promise whatsoever with regard to parole. Indeed, as the petitioner himself admitted at his state court post-conviction hearing, the subject of parole was never raised during the plea negotiations. Since the prosecutor made no specific, express sentencing promise concerning parole, it cannot be said that, under the strictures of Santobello, petitioner’s plea was invalid. Nor can it be said that the prosecutor in this case even “implied” a promise not to make any recommendation concerning parole, for, as this Court has previously held, proceedings before a parole board are not part of the sentencing process or a criminal prosecution. Ganz v. Bensinger, 480 F.2d 88, 89 (7th Cir. 1973). Thus, petitioner received the exact sentence he bargained for in exchange for his plea of guilty, and we are therefore satisfied that there was full compliance with the plea bargain. Petitioner further contends that his plea was not rendered knowingly and voluntarily due to the failure of the trial court to admonish him concerning the fact that an unfavorable parole recommendation would be sent to the parole board as part of the “pen letter”. While it is true, as petitioner asserts, that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), required that a defendant entering a plea must be informed of the consequences of the plea, only direct consequences of the plea must necessarily be explained to the defendant. United States v. Lambros, 544 F.2d 962, 966-967 (8th Cir. 1976), cert. denied, 430 U.S. 930, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977)." }, { "docid": "22765634", "title": "", "text": "Justice Stevens delivered the opinion of the Court. In 1975, respondents pleaded guilty in Illinois state court to a charge of burglary, an offense punishable at that time by imprisonment for an indeterminate term of years and a mandatory 3-year parole term. We granted certiorari to consider whether the failure of the trial court to advise respondents of that mandatory parole requirement before accepting their guilty pleas deprived them of due process of law. We are unable to reach that question, however, because we find that respondents’ claims for relief are moot. I On March 11, 1975, respondent Lawrence Williams ap-. peared in Illinois state court and pleaded guilty to a single count of burglary. Before accepting the guilty plea, the trial judge elicited Williams’ understanding of the terms of a plea agreement, in which his attorney and the prosecutor had agreed that Williams would receive an indeterminate sentence of from one to two years in prison in exchange for pleading guilty. The judge informed Williams that he would impose the bargained sentence, and advised him of both the nature of the charge against him and the constitutional rights that he would waive by pleading guilty. After the prosecutor established a factual basis for the plea, Williams indicated that he understood his rights and wished to plead guilty. At the time that Williams pleaded guilty, Illinois law required every indeterminate sentence for certain felonies, including burglary, to include a special parole term in addition to the term of imprisonment. During the plea acceptance hearing, neither the trial judge, the prosecutor, nor defense counsel informed Williams that his negotiated sentence included a mandatory parole term of three years. Williams was discharged from prison on May 20, 1976, and released on parole. On March 3, 1977, he was arrested for reasons that do not appear in the record and, on March 16, 1977, he was returned to prison as a parole violator. While in custody, Williams filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. He alleged that he “was" }, { "docid": "22239867", "title": "", "text": "the plea bargain, follows a for-tiori from Santobello. Reversed and remanded. HAYNSWORTH, Chief Judge (dissenting) : Until oral argument, the principal point in this case was whether, the sentence having been greater than the recommendation, the defendant was entitled to withdraw his guilty plea and go to a trial on a plea of not guilty as provided in the proposed amendment to Rule 11. See, e. g., United States ex rel. Cul-breath v. Rundle, 3 Cir., 466 F.2d 730-735; United States v. Gallington, 8 Cir., 488 F.2d 637. The point was aborted, •however, when defense counsel announced at the oral hearing that he had received positive instructions from the defendant not to seek the right to withdraw his plea. All that remains, then, is an appraisal of the sentencing hearing to determine whether the Government recommended that a sentence of no more than three years be imposed to be served at Lorton in accordance with the plea bargain. Though no principle of law divides us, I am prompted to note my disagreement with the majority out of a sense of fairness to the trial judge and to the prosecutor. At the hearing when the guilty plea was tendered, the Assistant United States Attorney who negotiated the bargain clearly, correctly, and without reservation stated what the bargain was. If, at the sentencing hearing, a different Assistant United States Attorney may be said to have been halfhearted in making the recommendation because of his inability to answer the judge’s question as to why confinement should be in a facility of the District of Columbia, and his expression of some personal reservation about it, he was not required to stultify himself. If that were all, however, I would agree with the majority because the judge’s question probably should have been anticipated and the Assistant present at the sentencing hearing should have been informed why the Assistant who negotiated the bargain agreed to recommend confinement at Lorton. All of this was fully developed at the sentencing hearing, however, after the colloquy quoted by the majority. After the prosecutor’s recommendation, the Court was reminded that" }, { "docid": "15376681", "title": "", "text": "sentence recommendation in exchange for his guilty plea and the return of the merchandise, he had not truly accepted responsibility for his actions. In the first session of a three-part sentencing hearing on February 15, 1989, the prosecution recommended that Kurkculer be sentenced in accordance with the presen-tence report. The defense objected to the prosecution’s failure to make its recommendations in accordance with the agreement. The hearing was continued, and on February 22, the defense moved that the matter be assigned to another judge for sentencing and that the prosecution be ordered to keep its agreement. The judge refused to recuse himself from the matter. The prosecution withdrew its original recommendation and now recommended a 12-month sentence under level 13 of the guidelines, as agreed. The defense renewed its motions, contending that the prosecution’s new recommendation was ineffective, since the judge had heard the original recommendation and understood that this was the prosecution’s “real” evaluation. The judge said that he was unaffected by the prosecution’s recommendations, and held that because of the new recommendation there was no breach of the plea agreement. The judge asked if the defendant wished to withdraw his guilty plea, but defense counsel continued to request recusal and specific performance of the agreement. Finally, on March 3, Kurkculer was sentenced in accordance with the recommendations of the presentence report, to three years in prison on each of the three counts, to run concurrently. The court also increased Kurkculer’s sentence beyond the guideline range because of his “frivolous” objection to the presentence report. Promises, Promises The Supreme Court’s Santobello decision and our own decisions require more than good faith by the government in securing through plea bargaining a defendant’s waiver of constitutional rights. The government must keep its promises or the defendant must be released from the bargain. Thus, on remand Santobello’s possible remedies for a prosecutor’s breached agreement were specific performance or withdrawal of the bargained-for plea. In Santobello, a prosecutor inadvertently breached a colleague’s earlier agreement to make no sentence recommendation, and instead recommended the maximum sentence. The sentencing judge stated for the record that" }, { "docid": "22593164", "title": "", "text": "with the Rein firm, also actively participated in the plea negotiations. Regarding the negotiations about the Utica charge, Leiman testified that he became increasingly distressed because he kept getting different versions of the same conversations from negotiators from the prosecutor’s office. He expressed a similar reaction to discussions about the Provident robbery charge. Finally, he spoke to Ludwig privately about whether there was any commitment for a suspended sentence in the Provident case from Justice Farrell. Ludwig replied that he had spoken to the judge privately and was “dead sure.” Leiman then spoke to Assistant District Attorney Demakos who said that, as far as he knew, there was no commitment in hand. Leiman attempted to clarify the situation by drafting a letter to go directly to Mackell. In a memorandum dated March 30, 1970, Leiman summarized his negotiating relationship with the prosecutors about the Provident plea and sentence as follows: The difficult [sic] is that even if I get a commitment by telephone on one day, everybody in the Queens D.A.’s office conveniently forgets it the next. I have gotten to the point where I simply do not ■ believe any oral statements emanating from that office. After hearing the evidence, the district court concluded that Palermo and Saltzman were induced to plead guilty to the Provident robbery charge by representations made to them by Ludwig and O’Connor that they would receive parole after one year in prison; that Mackell knew of the specific commitments made about parole; that Ludwig and Mackell knew they had no such assurances from the Parole Board; and that Mackell clearly violated his agreement to take all possible steps to achieve an early parole for Palermo and Saltzman. In short, the district court concluded that the plea bargain was negotiated in bad faith by the prosecutors and that it was not carried out. Appellate review of findings of fact is limited to a determination of whether those findings are “clearly erroneous,” giving “due regard ... to the opportunity of the trial court to judge of the credibility of the witnesses.” Fed.R.Civ.P. 52(a). “A finding is" }, { "docid": "18892220", "title": "", "text": "frauds and larcenies, but then chose to deal away most of the charges in two narrowly drawn plea bargains. It is highly probable that if either prosecutor had proved even a substantial part of his charges in open court, Dr. Bergman would have faced a heavy sentence indeed. Instead of taking these charges to trial, however, the prosecutors entered into interrelated plea bargains with the defendant’s counsel. Both agreements were reduced to writing, signed by the parties, and made a part of the public record. The federal and state plea bargains provided that the Special State Prosecutor was to drop his fraud and larceny indictment altogether and only require the defendant to plead to a much narrower one charging bribery of a state legislator. (That indictment was dismissed as against the legislator. The dismissal is being appealed.) Both plea agreements provided that Dr. Bergman was to plead guilty to only Counts One and Three of the 11-count federal indictment. Although these are serious crimes, they are moderate in comparison to the full panoply of the offenses originally charged. Under the federal agreement, the defendant was permitted to plead guilty by reading a prepared statement of narrowly drawn, tightly limited admissions of fact, which were to be all the defendant would confess (and all he could justly be sentenced for). This statement contained nothing, for example, about $1.2 million or $2.5 million or any other astronomical sums of allegedly fraudulent Medicaid claims. There was certainly nothing about whether the Bergman nursing homes had given good or bad nursing care. This court’s duty was, of course, to sentence defendant for what he had admitted, not upon accusations that were not only unproved, but that the prosecutors had agreed to drop as criminal charges. The general public could easily have misunderstood this. But the plea bargainers certainly had no reason to misunderstand. It appears, however, that there have been, putting the best face upon things, some possible misunderstandings. As part of the plea bargain, though his case has been scheduled as the first and primary one, the Special State Prosecutor agreed to have" }, { "docid": "15777628", "title": "", "text": "v. Israel, 581 F.2d 1276 (7th Cir. 1978). Subsequently upon the granting of the petition to that effect, the case was reheard by the Court en banc. II Petitioner asserts two grounds as the basis for vacating his guilty plea and permitting him the opportunity to plead anew. First, he contends that the plea agreement was breached by the sending, without his knowledge, of the “pen letter” recommendation opposing his parole. Second, petitioner contends that his plea was not made knowingly and voluntarily because he was not informed that as a consequence of his plea and the unfavorable parole recommendation his parole could be delayed several years. We are unpersuaded by the arguments advanced in support of these contentions and accordingly conclude, as did the district court, that there was compliance with the plea bargain agreement and that the petitioner’s guilty plea was not invalidated by the failure to advise him of the “pen letter” transmittal to the parole board recommending parole ineligibility. Petitioner relies on Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) as support for his contention that the plea agreement was breached by the unfavorable parole recommendation. We find petitioner’s reliance on Santobello to be misplaced. The holding in Santobello required strict adherence to the specific and express terms of the plea agreement reached between the criminal defendant and the state. In the instant case, the trial judge clearly abided by the express terms of the plea agreement: Robinson was promised and received a ten to forty year prison term in return for his guilty plea. The prosecutor made no promise whatsoever with regard to parole. Indeed, as the petitioner himself admitted at his state court post-conviction hearing, the subject of parole was never raised during the plea negotiations. Since the prosecutor made no specific, express sentencing promise concerning parole, it cannot be said that, under the strictures of Santobello, petitioner’s plea was invalid. Nor can it be said that the prosecutor in this case even “implied” a promise not to make any recommendation concerning parole, for, as this Court has" }, { "docid": "18892221", "title": "", "text": "offenses originally charged. Under the federal agreement, the defendant was permitted to plead guilty by reading a prepared statement of narrowly drawn, tightly limited admissions of fact, which were to be all the defendant would confess (and all he could justly be sentenced for). This statement contained nothing, for example, about $1.2 million or $2.5 million or any other astronomical sums of allegedly fraudulent Medicaid claims. There was certainly nothing about whether the Bergman nursing homes had given good or bad nursing care. This court’s duty was, of course, to sentence defendant for what he had admitted, not upon accusations that were not only unproved, but that the prosecutors had agreed to drop as criminal charges. The general public could easily have misunderstood this. But the plea bargainers certainly had no reason to misunderstand. It appears, however, that there have been, putting the best face upon things, some possible misunderstandings. As part of the plea bargain, though his case has been scheduled as the first and primary one, the Special State Prosecutor agreed to have the problem of sentencing handled by the federal court. He further agreed to “recommend to the Judge of the New York State Supreme Court who will sentence Bernard Bergman on his plea of guilty to making unlawful payments to [a state legislator] that, in light of Bernard Bergman having voluntarily disclosed the facts of the crime to the Special Prosecutor and since the Federal Judge will know of these facts when he imposes sentence on the Federal charges, no sentence additional to that imposed by the United States District Court Judge on the federal indictment be imposed here.” The occasion for the application to postpone surrender is an unresolved dispute, evidently in progress for some time, over the restitution aspect of the state plea bargain. It has been agreed that the defendant “will pay to the State of New York, voluntarily, without any civil action or litigation of any kind, whatever sums of money are owing to the State of New York the amount to be determined after accountants representing the United States, the State" }, { "docid": "22614932", "title": "", "text": "deal.” The court asked whether he was “talking about a disposition ... other than trial,” and Dominguez answered, “At no time have I decided to go to any trial.” App. 46-47. Counsel spoke to the same effect later in the proceeding, when he said that he had “told [the prosecutor] all along that there won’t be a trial on the [date set] based on my client’s representations that he doesn’t want a trial.” Id., at 51. The court explained to Dominguez that it could not help him in plea negotiations, and found no reason to change counsel. Shortly after that, the parties agreed that Dominguez would plead guilty to the conspiracy, and the Government would dismiss the possession charge. The Government stipulated that Dominguez would receive what is known as a safety-valve reduction of two levels. See United States Sentencing Commission, Guidelines Manual §§2Dl.l(b)(6), 5C1.2 (Nov. 1999) (hereinafter USSG). The safety valve was important because it would allow the court to invoke 18 U. S. C. § 3553(f), authorizing a sentence below the otherwise mandatory minimum in certain cases of diminished culpability, the only chance Dominguez had for a sentence under 10 years. That chance turned on satisfying five conditions, one going to Dominguez’s criminal history, which the agreement did not address. The agreement did, however, warn Dominguez that it did not bind the sentencing court, and that Dominguez could not withdraw his plea if the court did not accept the Government’s stipulations or recommendations. At a hearing the next day, Dominguez changed his plea to guilty. In the plea colloquy, the court gave almost all the required Rule 11 warnings, including the warning that the plea agreement did not bind the court, but the judge failed to mention that Dominguez could not withdraw his plea if the court did not accept the Government’s recommendations. See Fed. Rule Crim. Proc. 11(c)(3)(B). When the Probation Office subsequently issued its report, it found that Dominguez had three prior convictions, two of them under other names, which neither defense counsel nor the prosecutor had known at the time of the plea negotiations. The" }, { "docid": "22686831", "title": "", "text": "pleas, the government acquiesced in the defense counsel’s demand that the government proffer its factual basis in- a more limited version than it had proposed filing. That did not materially concern the government’s position at sentencing, the volun-tariness of the defendant’s decision to plead guilty, or the existing plea agree ment. It did not affect the court’s obligation under Rule 11, it had little effect on the factual basis for the plea, and it did not change the fact that defendant was truthfully admitting his guilt. It was the working out of an objection from defense counsel, not over whether the defendant was willing to admit his guilt to the crimes charged, but over how much of the government’s evidence he was willing to acknowledge publicly to be true, and in what detail. At oral argument on the motion to withdraw the pleas, the district judge said that knowledge of the discussions would have caused him to do nothing differently. He concluded that the question of how the government would present the factual basis for defendant’s pleas was not a material part of the plea agreement, and that the parties’ not telling him about it did not violate Rule 11. That finding is not clearly erroneous. III. It is settled law that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971). When the government fails to adhere to the plea agreement in any way, the sentence must be vacated and remanded to the district court either to allow the appellant to withdraw his plea or grant specific performance of the plea agreement. Id. at 263, 92 S.Ct. at 499. That is the case even if the judge assures that he was not influenced in his sentencing by the prosecutor’s recommendation. United States v. Crusco, 536 F.2d 21, 26 (3rd Cir.1976). Moore has sought to establish that there was" }, { "docid": "22465041", "title": "", "text": "in excess of three years would be to have no chance of a concurrent sentence.” At the § 2255 motion hearing, he explained that he had meant that were the federal sentence to be truly concurrent, the federal minimum could not have been more than the roughly three years remaining to be served under the state minimum. He made no effort at sentencing, however, to give this explanation of his cryptic comment or to explain the inconsistency between that comment and his basic 4-to-8 year recommendation. In any event, even this belated observation was completely unresponsive to the almost immediate possibility of state parole, which defense counsel had' just mentioned. Nor was the situation cleared up when, after the court’s announcement that it would impose a 5-year sentence with immediate parole eligibility, the United States Attorney stated that “we would go one step further and recommend that he be released on parole as soon as it is determined by State authorities that he is eligible for parole under his State sentence.” This statement was obviously not adequate fulfillment of a promise to recommend concurrency, having come only after the court’s response to his recommendation. Even had it come earlier, we think it so inconsistent with his earlier recommendation that only an express statement that he was changing his recommendation would have sufficed to dispel any confusion and meet his obligation of fulfilling his plea-inducing promise. Though these comments at sentencing suggest the prosecutor’s bona fides in seeking to effectuate the plea agreement, good faith or deferential terseness do not excuse the mistakes. A government attorney must know the applicable law and its implications for the case before him, and must present a recommendation to both the defendant and court which is lawful, clear and consistent both internally and with respect to the underlying promise. -Those requirements were obviously not met here. We do not mean to imply that only the government attorney has obligations of knowledge and clarity. Defense counsel too must know or learn about the relevant law and evaluate its application to his or her client. Clearly, in" }, { "docid": "22593165", "title": "", "text": "the next. I have gotten to the point where I simply do not ■ believe any oral statements emanating from that office. After hearing the evidence, the district court concluded that Palermo and Saltzman were induced to plead guilty to the Provident robbery charge by representations made to them by Ludwig and O’Connor that they would receive parole after one year in prison; that Mackell knew of the specific commitments made about parole; that Ludwig and Mackell knew they had no such assurances from the Parole Board; and that Mackell clearly violated his agreement to take all possible steps to achieve an early parole for Palermo and Saltzman. In short, the district court concluded that the plea bargain was negotiated in bad faith by the prosecutors and that it was not carried out. Appellate review of findings of fact is limited to a determination of whether those findings are “clearly erroneous,” giving “due regard ... to the opportunity of the trial court to judge of the credibility of the witnesses.” Fed.R.Civ.P. 52(a). “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). Where findings relate to the design, motive and intent behind human actions, they especially depend upon the credibility assessment of witnesses by those who see and hear them. United States v. Yellow Cab Co., 338 U.S. 338, 341, 70 S.Ct. 177, 94 L.Ed. 150 (1949); Caputo v. Henderson, 541 F.2d 979, 984 (2d Cir. 1976); United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 713 (2d Cir. 1960). Thus, an appellate court, equipped only with a “cold” record, is appropriately reluctant to reject the credibility evaluations of the district court. The State challenges the district court’s findings on the ground that it failed to consider critical facts, primarily the extraordinary role played by Palermo’s attorneys Evseroff and Bobick. The State essentially contends that because" }, { "docid": "7472646", "title": "", "text": "knowledge about possible federal prosecution rendered his guilty plea involuntary and unintelligent under the fifth amendment; and (3) defense counsel’s failure, at the state level, to advise Jordan of possible federal prosecution denied Jordan effective assistance of counsel under the sixth amendment. 1. Prosecutorial Conduct Prosecutorial misconduct raises due process and fifth amendment concerns. A prosecutor offends due process when he breaches a plea agreement. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Jordan argues that his plea incorporated an implied promise not to subject him to additional prosecution. He argues that the State’s Attorney broke this promise when the federal government prosecuted Jordan. Likewise, the government violates the fifth amendment when it compels a defendant to incriminate himself. Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). Jordan does not assert that the prosecutors used threats to compel his plea. See Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970). Rather, he asserts that the prosecutors induced his plea with a material misrepresentation — nondisclosure of the ATF notification and the possibility of subsequent federal prosecution. Jordan cites Santobello v. New York and Murphy v. Waterfront Commission as support for his argument of prose-cutorial misconduct. In Santobello, the defendant pleaded guilty and the prosecutor who negotiated the plea agreement agreed to make no sentence recommendation. Another prosecutor was later substituted into the case and, unaware of this agreement, recommended a sentence. The Supreme Court imputed the knowledge of one prosecutor to the other, found that the recommendation was a breach of the agreement, and invalidated the plea. Santobello, 404 U.S. at 262-63, 92 S.Ct. at 498-99. In Murphy, the State granted the defendants immunity from state prosecution and compelled their attendance at a grand jury. When the defendants refused to answer questions on the grounds that their answers might subject them to federal prosecution, the State found them in contempt. The Supreme Court reversed and held that one sovereign could not compel testimony which might subject the witness to prosecution by" }, { "docid": "8169549", "title": "", "text": "disguise the source of the money. In court, the judge proceeded through the usual Rule 11 colloquy. He did not repeat the careful examination of the terms of the plea agreement which had been performed the day before, but did give Frank another chance to ask any questions he might have, and did advise him of the maximum penalties for the crimes to which he was pleading. Regarding the factual basis, the judge said that he thought the evidence had demonstrated without dispute that Frank had organized five or more people for purposes of the continuing criminal enterprise count. Mr. Polis, Frank’s lawyer, said, “No dispute about that.... No dispute he organized at least five people, your Honor.” Then the judge gave Frank an opportunity to plead, and accepted his plea of guilty. At sentencing, Frank had a new lawyer. (The record reflects that seven different lawyers have represented him at various stages in this proceeding). The sentencing hearing was held at the same time as an evidentiary hearing on Frank’s motion to withdraw his plea of guilty. His new lawyer, Ms. Thorpe, called as her first witness Mr. Polis, Frank’s lawyer when he changed his plea. Mr. Polis testified that the government’s pretrial position had been a minimum of twenty years, not the ten-year minimum in the agreement, and the defense had turned it down. But after two days of increasingly damaging testimony, on his recommendation and with Frank’s approval, Mr. Polis approached the prosecutor about a deal. Then, after the negotiations with the prosecutor, counsel went into chambers. Mr. Polis thought this was after the terms had been agreed upon, but he was not sure. He was sure that all the terms had been agreed upon before the judge ever addressed the defendants directly. Regarding the judge’s remark about what Frank would have received if he had not made a deal, Mr. Polis said, “I solicited a remark about what would happen in the event we went to trial.” Mr. Polis said that the plea was not a package deal — the government would have agreed to a" }, { "docid": "22678758", "title": "", "text": "executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand: “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id., at 262. Santobello demonstrates why respondent may not successfully attack his plea of guilty. Respondent’s plea was in no sense induced by the prosecutor’s withdrawn offer; unlike Santobello, who pleaded guilty thinking he had bargained for a specific prosecutorial sentencing recommendation which was not ultimately made, at the time respondent pleaded guilty he knew the prosecution would recommend a 21-year consecutive sentence. Respondent does not challenge the District Court’s finding that he pleaded guilty with the advice of competent counsel and with full awareness of the consequences — he knew that the prosecutor would recommend and that the judge could impose the sentence now under attack. Respondent’s plea was thus in no sense the product of governmental deception; it rested on no “unfulfilled promise” and fully satisfied the test for voluntariness and intelligence. Thus, because it did not impair the voluntariness or intelligence of his guilty plea, respondent’s inability to enforce the prosecutor’s offer is without constitutional significance. Neither is the question whether the prosecutor was negligent or otherwise culpable in first making and then withdrawing his offer relevant. The Due Process Clause is not a code of ethics for prosecutors; its concern is with the manner in which persons are deprived of their liberty. Here respondent was not deprived of his liberty in any fundamentally unfair way. Respondent was fully aware of the likely consequences when he pleaded guilty; it is not unfair to expect him to live with those consequences now. The judgment of the Court of Appeals is Reversed. The petition was referred to a Magistrate who conducted an evidentiary-hearing and made recommended findings of fact and conclusions of law, which the District Court subsequently adopted. Compare Virgin Islands v. Scotland, 614 F. 2d 360 (CA3 1980), and United States v. Greenman, 700 F." }, { "docid": "18892222", "title": "", "text": "the problem of sentencing handled by the federal court. He further agreed to “recommend to the Judge of the New York State Supreme Court who will sentence Bernard Bergman on his plea of guilty to making unlawful payments to [a state legislator] that, in light of Bernard Bergman having voluntarily disclosed the facts of the crime to the Special Prosecutor and since the Federal Judge will know of these facts when he imposes sentence on the Federal charges, no sentence additional to that imposed by the United States District Court Judge on the federal indictment be imposed here.” The occasion for the application to postpone surrender is an unresolved dispute, evidently in progress for some time, over the restitution aspect of the state plea bargain. It has been agreed that the defendant “will pay to the State of New York, voluntarily, without any civil action or litigation of any kind, whatever sums of money are owing to the State of New York the amount to be determined after accountants representing the United States, the State of New York, and the defendant have consulted and examined the relevant financial records. The Special Prosecutor has argued in the state court that the main fault for failing to reach an agreement as to the amount to be paid lies on Dr. Bergman’s side. He has said that the plea agreement might well become “a nullity” if the defendant’s resistance continues, and might amount after all only to “froth.” If the state plea bargain, for any reason, becomes “a nullity,” serious questions will arise as to the closely connected federal bargain. If the Special Prosecutor is forced, after all, to go first, as had been planned, and prove his charges in open court, as he has thus far chosen not to do, there may be an issue as to whether the secondary federal case is barred by double jeopardy or other defenses. More significantly, the federal plea bargain and the state plea bargain are tied inseparably together. The court may not overlook the evident possibility that nullification of the state plea bargain may lead" }, { "docid": "18720359", "title": "", "text": "thank you, Your Honor. The state trial judge made no explicit findings of fact on whether the prosecutor had in fact promised to recommend only 25-30 years, nor did he make any explicit ruling on the question of the effect of any such promise, if made, on the voluntariness of the guilty pleas. After the prosecutor, in argument not under oath, recounted his version of the events preceding the execution of the plea agreement, the trial judge simply found that the petitioner had shown no grounds for relief on the sentence modification motion, and he denied it. After exhaustion of state remedies, which produced no further hearings or findings of fact in the Virginia courts, petitioner filed for federal habeas corpus relief. The district judge granted such relief on the record before him, consisting of the record of the proceedings described above, without conducting an evidentiary hearing. The district judge found that the prosecutor had in fact made an oral promise not to recommend a sentence exceeding 25-30 years. He also found that the petitioner understood the bargain to be that a 25-30 year recommendation would in fact be made, that the written agreement did not bar inquiry into the parol matters preceding its execution, and that the petitioner’s reliance on his understanding of the prosecutor’s undertaking (which was not what, in the event, materialized) rendered the plea involuntary. Because only voluntary guilty pleas may stand, and because breached plea agreements render a plea involuntary, see Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971), the district judge granted petitioner the writ of habeas corpus, requiring trial or resentencing. We reverse. Guilty pleas, resulting from plea bargaining, are a fact of life in the criminal law system of this country, as the Supreme Court has recognized. Blackledge v. Allison, 431 U.S. 63, 76, 97 S.Ct. 1621, 1630, 52 L.Ed.2d 136 (1977). In order for the criminal justice system to function, in light of the huge input volume and the scarce resources for processing it in the time demanded by the Sixth Amendment and" } ]

[ { "docid": "6028546", "title": "", "text": "to be capable of fully automatic fire (able to discharge all rounds with a single trigger pull) and that internal Uzi parts found in Gravenmeir’s home were those that would need to be removed to make such a weapon fully automatic. The jury convicted Gravenmeir on both counts. We affirm his conviction. II. Discussion A. The Elements of § 922(o) 18 U.S.C. § 922(o) provides in relevant part: (1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun. (2) This subsection does not apply with respect to ... (B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date -this subsection takes effect [May 19,1986]. Gravenmeir claims that paragraph two contains additional elements of the crime that the government must prove, and therefore the jury instructions, which did not require the jury to find that the government proved this additional element, were deficient. We review de novo whether an instruction misstates or fails to state the elements of a statutory crime. United States v. Tagalicud, 84 F.3d 1180, 1183-84 (9th Cir.1996). We agree with the Eighth Circuit that, rather than setting forth additional elements of the offense that the government must prove, “[t]he exceptions contained in part (2) of the subsection establish affirmative defenses to the defined offense.” United States v. Just, 74 F.3d 902, 904 (8th Cir.1996). This interpretation is consistent with the Supreme Court’s settled rule that “an indictment ... founded on a general provision defining the elements of an offense ... need not negative the matter of an exception made by a proviso or other distinct clause.... ” McKelvey v. United States, 260 U.S. 353, 357, 43 S.Ct. 132, 134, 67 L.Ed. 301 (1922). This reading of the statute is also consistent with this circuit’s “well-established rule ... that a defendant who relies upon an exception to a statute ... has the burden of establishing and showing that he comes within the exception.” United States v. Freter, 31 F.3d 783, 788 (9th Cir.1994)(internal quotation omitted). Where, as in this ease, the" } ]

[ { "docid": "4267787", "title": "", "text": "such conflicts in favor of the prosecution, and must defer to that resolution.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.2010) (en banc) (internal quotation marks and citation omitted). Whether diminished capacity is a defense to a charged offense is reviewed de novo. United States v. Vela, 624 F.3d 1148, 1154 (9th Cir.2010). We review for abuse of discretion a district court’s decision to admit or exclude scientific evidence. United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002). III. ANALYSIS A. Count 2 Section 111 of 18 U.S.C. prohibits forcible assault on a federal officer “while engaged in or on account of the performance of official duties.” 18 U.S.C. § 111(a)(1). Because Section 111 does not define assault, we have adopted the common law definition of assault as either (1) “a willful attempt to inflict injury upon the person of another,” or (2) “a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Chapman, 528 F.3d at 1219-20 (quoting United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir.1976)); see generally United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957) (“[W]here a federal criminal statute uses a common-law term of established meaning without otherwise defining it, the general practice is to give that term its common-law meaning.”). The first type of common law assault is an attempt to commit a battery. United States v. Bell, 505 F.2d 539, 540 (7th Cir.1974). For this type of assault, there need not be physical contact with the intended victim, see Chapman, 528 F.3d at 1219 (explaining that “someone who threw a punch and missed” would be guilty of assault under Section 111), or reasonable apprehension on the part of the victim, see United States v. Lewellyn, 481 F.3d 695, 697 (9th Cir.2007) (explaining that “a showing of fear on the part of the victim” is not required under the attempted battery theory of assault). The second type of criminal assault, sometimes called an “intent-to-frighten,” derives from the law" }, { "docid": "22353259", "title": "", "text": "repeatedly rejected in this Circuit. See, e.g., United States v. Godinez-Rabadan, 289 F.3d 630, 632 (9th Cir.2002) (holding that indictment’s sufficiency is jurisdictional in nature and may be raised initially on appeal); United States v. Geiger, 263 F.3d 1034, 1039 (9th Cir.2001) (same); United States v. Ruelas, 106 F.3d 1416, 1418 (9th Cir. 1996) (“Ruelas may raise a defective indictment claim at any time.”); see also Fed. R.Crim.P. 12(b)(2) (2002) (providing that objections that an indictment “fails ... to charge an offense ... shall be noticed by the court at any time during the pendency of the proceedings”). We reject it again here. Velasco-Medina’s position fares no better. He argues that the indictment’s failure to allege the specific intent required for attempted reentry deprived the district court of jurisdiction because the indictment failed to charge him with an offense against the United States. Velas-co-Medina’s argument is untenable in light of the Supreme Court’s recent decision in United States v. Cotton, 535 U.S.-, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002): “[Defects in an indictment do not deprive a court of its power to adjudicate a case.” Cotton, 122 S.Ct. at 1785; see also id. (“Justice Holmes explained that a district court ‘has jurisdiction of all crimes cognizable under the authority of the United States ... [and] the objection that the indictment does not charge a crime against the Untied States goes only to the merits of the case.’ ”) (quoting Lamar v. United States, 240 U.S. 60, 65, 86 S.Ct. 255, 60 L.Ed. 526 (1916) (alteration in original)). Having disposed of these initial issues, we turn to the merits of Velasco-Medina’s appeal. II Sufficiency of the Indictment A. Standard of Review Relying on Pernillo-Fuentes and United States v. Du Bo, 186 F.3d 1177 (9th Cir.1999), Velasco-Medina asserts that our review is de novo and that the indictment’s defect warrants automatic reversal of his conviction. We disagree. In Pemillo-Fuentes, the grand jury returned an indictment charging the defendant with attempted reentry after deportation. 252 F.3d at 1031-32. Pernillo-Fuentes timely objected to the indictment because it, like the one charging Velasco-Medina, failed to" }, { "docid": "22596227", "title": "", "text": "answering Vela’s questions, and had cursed at him and pushed him. In these circumstances, a rational jury could construe Orozco-Santil-lan’s statements as threats. The statements in Count II could also be considered to be threats to assault Vela. The fact that Orozco-Santillan’s subsequently said Vela “would pay,” rather than that he would injure Vela, is no defense. See Gilbert, 884 F.2d at 456-57. Further, Orozco-Santillan’s statement must be considered in context. Vela had arrested Orozco-Santillan and subjected him to deportation proceedings. In these circumstances, a rational jury could conclude that Orozco-Santillan’s statement made on the telephone was a threat. B Orozco-Santillan’s second argument is that the government failed to prove that he was the person who called Vela on August 6, 1987 (Count I). Orozco-Santillan concedes that there was sufficient evidence to prove all elements except his identity. The identity of a telephone caller may be established by self-identification of the caller coupled with additional evidence such as the context and timing of the telephone call, the contents of the statement challenged, internal patterns and other distinctive characteristics, and disclosure of knowledge of facts known peculiarly to the caller. United States v. Miller, 771 F.2d 1219, 1234 (9th Cir.1985); Fed.R.Evid. 901. During his testimony, Orozco-San-tillan denied that he made the August 6 telephone call containing threatening statements to Vela. Vela, on the other hand, testified that he recognized the voice of the caller, that the contents of the call revealed information possessed by Orozco-Santillan, and furthermore that Orozco-Santillan admitted to making the call. Vela’s testimony, if believed, was sufficient to establish the identity of the caller. We must assume that the jury resolved the conflict between Vela’s and Orozco-Santillan’s testimony in favor of Vela. See Goode, 814 F.2d at 1355. Therefore, there was sufficient evidence such that a reasonable jury could find that Orozco-Santillan was the person who made these threats to assault Vela. Miller, 771 F.2d at 1234. The judgment of the district court is AFFIRMED. . 18 U.S.C. § 115(a)(1)(B) states, \"Whoever threatens to assault, kidnap, or murder a United States official, a United States judge, a Federal" }, { "docid": "22353260", "title": "", "text": "deprive a court of its power to adjudicate a case.” Cotton, 122 S.Ct. at 1785; see also id. (“Justice Holmes explained that a district court ‘has jurisdiction of all crimes cognizable under the authority of the United States ... [and] the objection that the indictment does not charge a crime against the Untied States goes only to the merits of the case.’ ”) (quoting Lamar v. United States, 240 U.S. 60, 65, 86 S.Ct. 255, 60 L.Ed. 526 (1916) (alteration in original)). Having disposed of these initial issues, we turn to the merits of Velasco-Medina’s appeal. II Sufficiency of the Indictment A. Standard of Review Relying on Pernillo-Fuentes and United States v. Du Bo, 186 F.3d 1177 (9th Cir.1999), Velasco-Medina asserts that our review is de novo and that the indictment’s defect warrants automatic reversal of his conviction. We disagree. In Pemillo-Fuentes, the grand jury returned an indictment charging the defendant with attempted reentry after deportation. 252 F.3d at 1031-32. Pernillo-Fuentes timely objected to the indictment because it, like the one charging Velasco-Medina, failed to allege specific intent. The district court denied Pernillo-Fuentes’s objection and, pursuant to a guilty plea, convicted him of attempted reentry after deportation. We reversed “[bjecause Pernillo-Fuentes’ indictment charging attempted entry did not allege specific intent as required under Ui’acidas-Ulibarry.” Id. at 1032. Velas-co-Medina urges the same result here. Unlike Pernillo-Fuentes, Velasco-Medi-na did not object at trial to the indictment’s sufficiency — a critical distinction. We relied on this distinction in United States v. James, 980 F.2d 1314 (9th Cir. 1992), where the defendant argued after the verdict “that the indictment was defective because it failed to allege the jurisdictional fact that he was an Indian.” James, 980 F.2d at 1316. We noted that “[w]hen the sufficiency of the indictment is challenged after trial, it is only required that ‘the necessary facts appear in any form or by fair construction can be found within the terms of the indictment.’ ” Id. at 1317 (quoting Kaneshiro v. United States, 445 F.2d 1266, 1269 (1971)). Thus, we upheld the indictment because “the necessary elements of the crime appeared]" }, { "docid": "22353261", "title": "", "text": "allege specific intent. The district court denied Pernillo-Fuentes’s objection and, pursuant to a guilty plea, convicted him of attempted reentry after deportation. We reversed “[bjecause Pernillo-Fuentes’ indictment charging attempted entry did not allege specific intent as required under Ui’acidas-Ulibarry.” Id. at 1032. Velas-co-Medina urges the same result here. Unlike Pernillo-Fuentes, Velasco-Medi-na did not object at trial to the indictment’s sufficiency — a critical distinction. We relied on this distinction in United States v. James, 980 F.2d 1314 (9th Cir. 1992), where the defendant argued after the verdict “that the indictment was defective because it failed to allege the jurisdictional fact that he was an Indian.” James, 980 F.2d at 1316. We noted that “[w]hen the sufficiency of the indictment is challenged after trial, it is only required that ‘the necessary facts appear in any form or by fair construction can be found within the terms of the indictment.’ ” Id. at 1317 (quoting Kaneshiro v. United States, 445 F.2d 1266, 1269 (1971)). Thus, we upheld the indictment because “the necessary elements of the crime appeared] in the indictment by reference to the relevant statutes,” thereby adequately informing James of the elements of the charge against him. Id. at 1318 (emphasis added). Our decision in Du Bo does not compel a different result. In Du Bo, defendant was charged by indictment for violating the Hobbs Act. 186 F.3d at 1179. Months before trial, Du Bo unsuccessfully challenged the sufficiency of the indictment for failing to specify the necessary mens rea. Id. Reversing, we noted: “[I]f properly challenged prior to trial, an indictment’s complete failure to recite an essential element of the charged offense is not a minor or technical flaw subject to harmless error analysis, but a fatal flaw requiring dismissal of the indictment.” Id. We emphasized, however, that “[o]ur holding is limited to cases where a defendant’s challenge is timely .... Untimely challenges to the sufficiency of an indictment are reviewed under a more liberal standard.” Id. at 1180 n. 3. That review is for plain error. See United States v. Ross, 206 F.3d 896, 899 (9th Cir.2000); Fed.R.Crim.P. 52(b)." }, { "docid": "11176114", "title": "", "text": "sentenced to twenty-six months imprisonment. The IJ found that aggravated driving under the influence is a crime of violence as defined in 18 U.S.C. § 16(b), and therefore is an aggravated felony. On that basis, the IJ ordered Gomez-Vela removed. Gomez-Vela appealed the IJ’s determination that he was guilty of an aggravated felony to the BIA, but the BIA dismissed his appeal on October 22,1999. Petitioners Bazan-Reyes, Maciasowicz, and Gomez-Vela all filed timely petitions for review of the INS and BIA decisions finding them removable. On appeal, petitioners argue that the INS and the BIA erred in their determination that Bazan Reyes and Gomez-Vela’s prior convictions for DWI and Maciasowicz’s conviction for homicide by intoxicated use of a vehicle are aggravated felonies rendering them removable under 8 U.S.C. § 1227(a)(2)(A)(iii). II. Analysis A. Jurisdiction The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009 (1996), limits our review of orders of removal. Under 8 U.S.C. § 1252(a)(2)(C), as amended by the IIRIRA, “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ... 1227(a)(2)(A)(iii).” Nevertheless, the government concedes that we retain jurisdiction in order to determine jurisdiction and may thus review the threshold issue of whether petitioners’ convictions for driving while intoxicated are indeed aggravated felonies as defined by 8 U.S.C. § 1227(a)(2)(A)(iii). See Solorzano Patlan v. INS, 207 F.3d 869, 872 (7th Cir.2000); Xiong v. INS, 173 F.3d 601, 604 (7th Cir. 1999). Here, the jurisdictional question and the merits collapse into one because the issue of whether petitioners’ convictions were aggravated felonies also provides the basis for their challenges to removal. See Guerrero Perez v. INS, 242 F.3d 727, 729-30 (7th Cir.2001). Thus, we must decide whether the state drunk driving convictions of Bazan-Reyes, Maciasow-icz, and Gomez-Vela can be considered aggravated felonies under 8 U.S.C. § 1101(a)(43). B. Was Bazan-Reyes Properly Placed in Expedited Removal • Proceedings? Before turning to the question of whether petitioners have committed aggravated felonies, we must first" }, { "docid": "2100157", "title": "", "text": "forming the mens rea necessary for commission of the offenses charged. The judge had earlier determined, after conducting a suppression hearing, that evidence of the voluntariness of Newman’s confession should go to the jury. After the judge denied Newman’s motion for acquittal, the jury convicted Newman on both counts in the indictment. He was sentenced to five years on the first count and ten years on the second, to be served concurrently. The judge also imposed a special assessment of $100 pursuant to the Comprehensive Crime Control Act, 18 U.S.C. § 3013. In this appeal, Newman raises four assignments of error: 1) the district court erred in failing to grant Newman’s motion for a directed verdict or acquittal based upon Newman's alleged inability to form the requisite mens rea to be convicted of an intentional crime; 2) the district court erred in sentencing Newman under pre-guideline standards; 3) the district court erred in admitting Newman’s post-arrest statements as a voluntary confession; 4) the district court’s imposition of a special assessment pursuant to 18 U.S.C. § 3013 violated Newman’s federal constitutional rights because § 3013 is unconstitutional. These issues are treated in turn. II. Newman’s first assignment of error concerns the degree to which his alleged involuntary intoxication precluded his forming the requisite mens rea for commission of the offenses charged. Newman insists that he is not here pleading anything resembling an insanity defenae. Neither, he claims, is he relying on notions of “diminished responsibility” or “diminished capacity,” the use of which as defenses to criminal charges has been restricted by the Insanity Defense Reform Act of 1984, 18 U.S.C. § 17. His alleged involuntary in toxication, rather, relates only to his capacity to have possessed, at the relevant time, the mental state required for criminal culpability. It is well established that intoxication, whether voluntary or involuntary, may preclude the formation of specific intent and thus serve to negate an essential element of certain crimes. See, e.g., United States v. Molina-Uribe, 853 F.2d 1193 (5th Cir.1988); United States v. Twine, 853 F.2d 676 (9th Cir.1988); United States v. Kurka, 818 F.2d" }, { "docid": "23509893", "title": "", "text": "of all the evidence. His having failed to renew his motion for judgment of acquittal, we review his sufficiency-of-the-evidence challenge only for a manifest miscarriage of justice. E.g., United States v. McDowell, 498 F.3d 308, 312 (5th Cir.2007); United States v. Avants, 367 F.3d 433, 449 (5th Cir.2004). Under the manifest-miscarriage-of-justice standard, Salazar must show either that the record is “devoid of evidence of guilt” or that the evidence is “so tenuous that a conviction is shocking”. Avants, 367 F.3d at 449. In determining whether Salazar’s conviction resulted in a manifest miscarriage of justice, and as is done un- der the standard of review employed when a sufficiency challenge is properly preserved, the evidence must be considered “in the light most favorable to the government, giving the government the benefit of all reasonable inferences and credibility choices”. McDowell, 498 F.3d at 312 (citations and internal quotation marks omitted). The charge against Salazar arose in connection with a federal indictment in Oklahoma against his brothers, Elijah and Rocky Salazar, and against another defendant, Iran Rolon, for conspiracy to possess with intent to distribute, and distribution of, methamphetamine, marijuana, and cocaine powder. Iran Rolon pleaded guilty to a possession and manufacturing charge, and then became a prosecution witness against Elijah and Rocky Salazar. During Salazar’s trial, Maria Vela testified that Salazar came to her home in late June or early July 2006 and told her to deliver a message to her sister, Sarah Rolon, that he was going to rape and kill Sarah Rolon because her husband, Iran Rolon, was responsible for Salazar’s two brothers being in jail. Vela testified she told Sarah Rolon about Salazar’s threat when Vela spoke with Sarah Rolon by telephone the following day. Maria Vela further testified that Salazar and two friends returned to her home a week or two later, knocked on her door, and walked around her house when she did not answer. Later, when Salazar presented evidence, David Foster testified he and Salazar stopped at Vela’s house on that occasion only because they needed gasoline for their vehicle and did not have money to" }, { "docid": "15681645", "title": "", "text": "GOULD, Circuit Judge. Juan Antonio Vela-Robles appeals his conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326. Vela-Robles contends that the district court erred in denying, for lack of a factual basis, his requested jury instruction on the need for freedom from official restraint to support a finding of illegal reentry. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. I On December 30, 2002, United States Border Patrol Agent Chris Ofeciar received a message from a seismic sensor located within Jackson Canyon, Arizona (about ten to fifteen feet north of the Mexican border) that the sensor had been activated. Ofeciar was not sure what had triggered the sensor because seismic sensors respond to the movement of animals, people, or vehicles, or even may be set off by the weather. Agents Ofeciar and Rene Ortiz responded to the sensor, arriving in the Jackson Canyon area an estimated ten minutes after being notified. Shortly thereafter, Ofeciar and Ortiz encountered Vela-Robles about three-quarters to one mile north of the border. Vela-Robles admitted that he was born in Mexico, that he was not legally within the United States, and that he had been deported in 1999, but had crossed back into the United States through a hole in the international boundary fence. Vela-Robles was later indicted on one count of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. During trial, Vela-Robles requested a jury instruction regarding “official restraint,” to support a theory of the case that he had not “entered” the United States. The government objected to the instruction on grounds that it was unsupported by the evidence and that it would unnecessarily confuse the jury. The district court denied the requested instruction, observing that there was no case law holding that sensor activation constituted observation, and that the instruction was not supported by the facts. The jury gave its verdict finding Vela-Robles guilty of one count of illegal reentry and the district court sentenced him to forty-six months in prison. This appeal followed, challenging the district court’s refusal to give the requested jury" }, { "docid": "4267812", "title": "", "text": "Jim’s analysis of the elements of the offense remains intact. Consequently, Acosta-Sierra argues that Section 111 must now be construed to require a showing of specific intent. We disagree. Although our decision in Chapman clarified the type of conduct prohibited by Section 111, it did not make Section Ill’s congressional purpose wholly irrelevant to resolving other ambiguities in this “inartfully drafted” statute, Chapman, 528 F.3d at 1218, such as the requisite level of mens rea. In resolving the complicated question of whether Section 111 requires proving specific or general intent, the majority of Jim’s congressional purpose analysis was based on the Supreme Court’s decision in United States v. Feola, which noted that, in passing Section 111, “Congress intended to protect both federal officers and federal functions.” Jim, 865 F.2d at 214 (quoting Feola, 420 U.S. at 679, 95 S.Ct. 1255) (internal quotation marks omitted). Because Jim is amply supported by the Supreme Court’s reasoning in Feola, it has not been effectively overruled by Chapman. Therefore, we do not find that our decisions in Chapman and Jim are clearly irreconcilable. See Miller v. Gammie, 335 F.3d 889, 892-93 (9th Cir.2003) (en banc) (holding that only when “the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, [should a three-judge panel] consider itself bound by the later and controlling authority, and ... reject the prior circuit opinion as having been effectively overruled.”). Because we are bound by our prior holding in Jim, the district court did not err in precluding Acosta-Sierra from introducing evidence as part of a diminished capacity defense. See also Vela, 624 F.3d at 1156 (holding, post-Chapman, that Section 111 is a general intent crime to which diminished capacity is not a permissible defense). 2. Evidence of Self-Defense Theory Finally, Acosta-Sierra argues that the district court erred when it excluded his mental health evidence in support of a self-defense theory on Count 3. We disagree. For purposes of Section 111, we have recognized that an individual may make out an affirmative defense of self-defense against a federal law" }, { "docid": "23509892", "title": "", "text": "presented from which the jury could have found the Government established the elements of the witness-tampering offense beyond a reasonable doubt. Concerning his sentence, he claims the district court erred in applying both the Guideline § 2X3.1 cross-reference (providing the minimum and maximum base offense level applicable to a defendant who was an accessory after the fact) and the earlier-referenced 18 U.S.C. § 15120). A. To obtain a conviction against Salazar, the Government had to prove, beyond a reasonable doubt, that he: (1) knowingly used intimidation, threats, or corrupt persuasion against the above-described Maria Vela or Sarah Rolon; and (2) did so with the intent to cause, or induce, Iran Rolon to withhold testimony from an official proceeding. 18 U.S.C. § 1512(b)(2)(A). Salazar contends the evidence was insufficient to support his conviction because the Government did not prove beyond a reasonable doubt that he made any threats to Maria Vela. Salazar moved for judgment of acquittal at the close of the Government’s case; but, after presenting evidence, Salazar did not so move at the close of all the evidence. His having failed to renew his motion for judgment of acquittal, we review his sufficiency-of-the-evidence challenge only for a manifest miscarriage of justice. E.g., United States v. McDowell, 498 F.3d 308, 312 (5th Cir.2007); United States v. Avants, 367 F.3d 433, 449 (5th Cir.2004). Under the manifest-miscarriage-of-justice standard, Salazar must show either that the record is “devoid of evidence of guilt” or that the evidence is “so tenuous that a conviction is shocking”. Avants, 367 F.3d at 449. In determining whether Salazar’s conviction resulted in a manifest miscarriage of justice, and as is done un- der the standard of review employed when a sufficiency challenge is properly preserved, the evidence must be considered “in the light most favorable to the government, giving the government the benefit of all reasonable inferences and credibility choices”. McDowell, 498 F.3d at 312 (citations and internal quotation marks omitted). The charge against Salazar arose in connection with a federal indictment in Oklahoma against his brothers, Elijah and Rocky Salazar, and against another defendant, Iran Rolon, for" }, { "docid": "18025402", "title": "", "text": "evidence. The government presented substantial evidence of Aleman’s guilt in addition to the challenged evidence. Vela asserts that the prosecutor’s statement concerning one of Vela’s previous marijuana convictions requires reversal of his conviction since it encouraged the jury to consider the prior conviction as evidence of his character. During the trial Vela testified that he had been convicted of marijuana dealings. This testimony was part of Vela’s attempt to establish an entrapment defense; he contended that government agents, knowing of his previous conviction, had induced him to commit the charged crimes. The government prosecutor mentioned the previous conviction in his closing argument. Vela did not object to the prosecutor’s statement. Thus any error must be “plain” to be material on appeal. As we recently held in United States v. Cook, 592 F.2d 877 at 879 (5th Cir. 1979): In order for an error to be within the classification of “plain” it must be not only obvious and substantial but also so basic and so prejudicial that the resulting trial lacks the fundamental elements of justice. The “plain error” concept confers upon a reviewing court a “residuum of power which, withheld from the trial participants’ usual control over preservation of error, protects not only their immediate interests but also the criminal justice process itself.” United States v. Johnson, 585 F.2d 119,127 (5th Cir. 1978). Vela urges that the admission of the prosecutor’s statement satisfies the plain error test, citing United States v. Garber, 471 F.2d 212 (5th Cir. 1972). In Garber, the prosecutor introduced evidence of previous convictions to impeach the defendant’s testimony and then dwelled on the extrinsic offense in his closing arguments. We held that the prosecutor’s statements were plain error; the government could not introduce the extrinsic crime for impeachment and then make use of it as character evidence in the closing argument. Garber is inapposite here. Vela himself introduced the evidence of the prior conviction to prove his entrapment defense. After Vela took the position that he committed the acts charged because of governmental coercion, it was not fundamentally unjust for the prosecutor to remind the jury" }, { "docid": "4267786", "title": "", "text": "in prison on Count 2 and 36 months on Count 3, with those terms to run concurrently, as well as three years of supervised release. Acosta-Sierra then filed a timely appeal. II. STANDARD OF REVIEW We review mixed questions of law and fact de novo. See United States v. Juvenile (RRA-A), 229 F.3d 737, 742 (9th Cir.2000). We also review de novo a district court’s denial of a motion for a judgment of acquittal based on insufficient evidence. United States v. Chapman, 528 F.3d 1215, 1218 (9th Cir.2008). In so doing, we must determine 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). “[W]hen faced with a record of historical facts that supports conflicting inferences ... [we] must presume — even if it does not affirmatively appear in the record — • that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.2010) (en banc) (internal quotation marks and citation omitted). Whether diminished capacity is a defense to a charged offense is reviewed de novo. United States v. Vela, 624 F.3d 1148, 1154 (9th Cir.2010). We review for abuse of discretion a district court’s decision to admit or exclude scientific evidence. United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002). III. ANALYSIS A. Count 2 Section 111 of 18 U.S.C. prohibits forcible assault on a federal officer “while engaged in or on account of the performance of official duties.” 18 U.S.C. § 111(a)(1). Because Section 111 does not define assault, we have adopted the common law definition of assault as either (1) “a willful attempt to inflict injury upon the person of another,” or (2) “a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Chapman, 528 F.3d" }, { "docid": "23509897", "title": "", "text": "did not like Salazar. A jury found Salazar guilty of the witness-tampering charge. Salazar maintains the evidence was insufficient to convict him because the Government’s key witness, Maria Vela, had previously been convicted of theft by check and was an admitted drug user who had smoked marijuana before she spoke with the police about the claimed threats. Salazar contends that Vela’s memory and mental ability were so impaired by drug use and a history of concussions (which resulted from beatings by her boyfriend) that she was unable to remember her address when she reported the threats to the police. Salazar also asserts that the testimony by his witness, Foster, contradicting Maria Vela’s claim, proved that Salazar’s return visit to Vela’s home was nothing more than an effort to request gasoline for his vehicle. Salazar does not mention the testimony by the other witnesses, such as Thogmar-tin and Conrad, both of whom corroborated Vela’s testimony that Salazar expressed an intention to harm members of the Ro-lon family. Instead, Salazar focuses on the credibility of Vela and Foster. Of course, our review does not include weighing the evidence or assessing the credibility of witnesses. E.g., United States v. Lopez, 74 F.3d 575, 577 (5th Cir.1996). It goes without saying that determining the weight and credibility of the evidence is solely within the province of the jury. E.g., United States v. Casilla, 20 F.3d 600, 602 (5th Cir.1994). Accordingly, it was for the jury to determine, inter alia, whether Vela’s testimony was reliable and whether Salazar and Foster returned to Vela’s home only because they needed gasoline. It is quite obvious that Salazar falls far short of satisfying the very narrow manifest-miscarriage-of-justice standard. Indeed, his sufficiency challenge would fail under the more lenient standard of review had he properly preserved this challenge. B. Salazar contests his sentence on three bases. He maintains the district court erred: by applying the cross-reference to Guideline § 2X3.1; through its interpretation and application of the penalty provisions in 18 U.S.C. § 1512(j); and by considering the evidence in the light of an incorrect burden of proof when" }, { "docid": "23524496", "title": "", "text": "to show that he or she is under official restraint.” Id. (quoting Pacheco-Medina, 212 F.3d at 1165). Because Vela-Robles presented no evidence that he was under constant observation, we held that Vela-Robles was not entitled to an official restraint instruction. Id. Unlike the defendants in Vela-Robles and Castellanos-Garcia, Bello-Bahena has pointed to affirmative evidence that he was under continuous visual observation by a border agent for a period of time before his arrest. Where, as here, there is at least “some foundation in the.evidence” to support a defendant’s theory of defense, a district court is required to give an instruction on that theory. See Fejes, 232 F.3d at 702; see also United States v. Washington, 819 F.2d 221, 225 (9th Cir.1987) (“[A] defendant is entitled to an instruction concerning his theory of the case if the theory is legally sound and evidence in the case makes it applicable, even if that evidence is weak, insufficient, inconsistent, or of doubtful credibility.”). Because, bearing in mind that the burden of proof was on the government, Agent Rodriguez’s testimony supports Bello-Bahena’s defense theory, the district court abused its discretion in failing to give an official restraint instruction. Moreover, the instruction actually given to the jury did not adequately cover Bello-Bahena’s defense theory. The court instructed the jury that there were three elements to the crime of being a deported alien found in the United States: “First, the defendant is an alien; second, the defendant was deported from the United States; and third, the defendant voluntarily reentered the United States without the consent of the Attorney General of the United States or his designated successor or the Department of Homeland Security.” The instruction-made no mention of official restraint or constant surveillance or of the burden of proof on that issue. Because' the evidence warranted an instruction regarding official restraint, and because the instruction given wholly failed to cover this theory, we reverse the judgment of the district court and remand for a new trial. IV. Finally, Bello-Bahena argues that the district court erred by denying his motion to dismiss the indictment for failure to" }, { "docid": "22596222", "title": "", "text": "is based on Orozco-Santillan’s statements during a telephone call he made to Vela on August 6, 1987. The previous day, Vela had arrested Marco Antonio Vidal-Rubio, Orozco-Santillan’s neighbor. When Vela answered his phone the next day, the caller said “Danny, this is Orozco. Somebody is going to die.” The person also said “you ain’t shit, Vela. You’re just a punk. You better let Vidal go. You had no right arresting him. You can’t fuck with me Vela, cause I’m out on bail! You’re going to get your ass kicked, punk.” These statements, made in a loud and angry manner, frightened Vela, and he understood the person was “out to kill him.” When Orozco-Santillan was arrested on August 11, 1987, he said, “You can’t fuck with me, Vela, just because I called.” At the close of both the government’s and his case, Orozco-Santillan moved for judgment of acquittal on all counts, pursuant to Fed.R.Crim.P. 29. The district court denied the motions. Orozco-Santillan was found guilty, following a jury trial, on all three counts, and sentenced to 18 months confinement and three years probation. He timely appeals, arguing that as to Counts II and III the government failed to prove that his statements were threats, and as to Count I the government failed to prove that Orozco-Santillan was the caller. II This court examines the sufficiency of the evidence to support a conviction and the denial of a motion for acquittal by reviewing the evidence “in the light most favorable to the prosecution,” determining 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); United States v. Sharif, 817 F.2d 1375, 1377 (9th Cir.1987). “[T]he reviewing court must respect the province of the jury to ascertain the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts, by assuming that the jury resolved all such matters in a manner which supports the verdict.” United States v. Goode, 814 F.2d 1353, 1355 (9th" }, { "docid": "18025403", "title": "", "text": "The “plain error” concept confers upon a reviewing court a “residuum of power which, withheld from the trial participants’ usual control over preservation of error, protects not only their immediate interests but also the criminal justice process itself.” United States v. Johnson, 585 F.2d 119,127 (5th Cir. 1978). Vela urges that the admission of the prosecutor’s statement satisfies the plain error test, citing United States v. Garber, 471 F.2d 212 (5th Cir. 1972). In Garber, the prosecutor introduced evidence of previous convictions to impeach the defendant’s testimony and then dwelled on the extrinsic offense in his closing arguments. We held that the prosecutor’s statements were plain error; the government could not introduce the extrinsic crime for impeachment and then make use of it as character evidence in the closing argument. Garber is inapposite here. Vela himself introduced the evidence of the prior conviction to prove his entrapment defense. After Vela took the position that he committed the acts charged because of governmental coercion, it was not fundamentally unjust for the prosecutor to remind the jury that Vela had testified that he stood before them with a prior record of marijuana dealings. Appellate parsing of the prosecutor’s argument is not necessary to protect either the immediate interests of the defendant or the criminal justice process itself. Johnson, supra, 585 F.2d at 127. The convictions of Juan Fidel Aleman and Rogelio Hernandez Vela are AFFIRMED . Counts three, four, five and seven charged violations of 21 U.S.C. § 841(a)(1), which forbids the distribution of cocaine. Counts nine, ten, eleven and fourteen accused Vela of using a telephone to facilitate the commission of a felony, in violation of 21 U.S.C. § 843(b). . We note that if the government had indicted and tried Aleman in a single trial for both the heroin offense and the cocaine transaction, Aleman’s motion to sever his trial on the crimes could have been denied. Federal Rule of Criminal Procedure 8(a) permits joinder when the offenses charged “are based on the same act or transaction.” Federal Rule 14 provides that a motion to sever may be granted if" }, { "docid": "7148054", "title": "", "text": "review by making the proper objections, the Court affirmed Vela’s conviction. Vela v. State, 516 S.W.2d 176, 176-179 (Tex.Cr.App.1974). Vela next filed a petition for habeas corpus in the court that had convicted him, alleging that he had been denied his constitutional right to effective assistance of counsel at his sentencing proceeding. The court concluded that Vela had received effective assistance of counsel, and recommended that all relief be denied. The Texas Court of Criminal Appeals then denied Vela’s application without written order. Vela next applied pro se for federal habe-as corpus relief under 28 U.S.C.A. § 2254 (West 1977), again claiming ineffective assistance of counsel. The magistrate concluded that trial counsel’s “inartful” performance “more than adequately represented the Petitioner,” and alternatively found that even if counsel’s performance was seriously inadequate, Vela had failed to show that the sentencing proceeding was so unfairly prejudicial as a whole to be “fundamentally unfair” in light of the overwhelming evidence of guilt. The district court adopted the magistrate’s findings, conclusions and recommendation, and dismissed Vela’s petition. Vela appeals that dismissal to this Court. ANALYSIS: Exhaustion Requirement We are faced at the outset with the State’s contention that Vela’s supplemental brief to this Court contains claims which the state habeas court never had the opportunity to consider. The State maintains that we may not entertain these unexhaust-ed claims, and must dismiss Vela’s petition as mixed. Specifically, the State alleges that Vela now for the first time claims that his attorney at trial failed to prepare him for questions regarding his guilty plea, neglected to make a large number of objections he should have made, or objected on improper grounds, failed to properly stipulate to evidence, and performed inadequately in his summation. The State does not object to Vela’s citation on appeal of the three central errors urged in his state habe-as petition as grounds for a finding that counsel was ineffective, viz. 1) failure to properly object to prejudicial character testimony, 2) failure to properly object to Brown’s widow’s testimony, and 3) failure to properly object to the State’s closing argument. The principle that" }, { "docid": "22033722", "title": "", "text": "impeachment evidence under FRE 609; (3) the district court erred by failing to excuse Juror Post from the panel; and (4) the verdict was not unanimous as required by Federal Rule of Criminal Procedure 31(a) because one of the jurors arrived late to the deliberations. Hursh also challenges his sentence, contending that the district court erred in denying his motion for a downward adjustment based on his role as a minimal participant. We conclude that all of Hursh’s contentions are without merit and, therefore, we affirm. A. Sufficiency of the Evidence We review de novo the district court’s denial of a motion for judgment of acquittal based upon insufficient evidence to sustain a conviction. United States v. Hernandez, 105 F.3d 1330, 1332 (9th Cir.1997). In reviewing a challenge to the sufficiency of the evidence, we must ask whether, 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. Hubbard, 96 F.3d 1223, 1226 (9th Cir.1996) (internal quotation marks omitted). Hursh asserts that there was insufficient evidence to support the verdict because the government failed to prove that he had knowledge of the marijuana in the gas tank. Hursh is wrong. To begin, it is well-settled that “[mjere possession of a substantial quantity of narcotics is sufficient evidence to support a finding that a defendant knowingly possessed the narcotics.” United States v. Collins, 764 F.2d 647, 652 (9th Cir.1985). Here, Hursh was the driver and sole occupant of a car whose gas tank contained 59.3 pounds of marijuana, which is a “substantial quantity of narcotics.” As such, the jury could properly infer that Hursh knew about the drugs. See United States v. Davila-Escovedo, 36 F.3d 840, 843 (9th Cir.1994). Moreover, the government presented other evidence that Hursh knew about the marijuana in the gas tank. First, Inspectors Vela and Rodriguez testified that Hursh seemed very nervous during questioning. Second, there was evidence that Hursh changed his story about the purpose of his trip to Mexico. Third, Rodriquez testified that" }, { "docid": "23509898", "title": "", "text": "Foster. Of course, our review does not include weighing the evidence or assessing the credibility of witnesses. E.g., United States v. Lopez, 74 F.3d 575, 577 (5th Cir.1996). It goes without saying that determining the weight and credibility of the evidence is solely within the province of the jury. E.g., United States v. Casilla, 20 F.3d 600, 602 (5th Cir.1994). Accordingly, it was for the jury to determine, inter alia, whether Vela’s testimony was reliable and whether Salazar and Foster returned to Vela’s home only because they needed gasoline. It is quite obvious that Salazar falls far short of satisfying the very narrow manifest-miscarriage-of-justice standard. Indeed, his sufficiency challenge would fail under the more lenient standard of review had he properly preserved this challenge. B. Salazar contests his sentence on three bases. He maintains the district court erred: by applying the cross-reference to Guideline § 2X3.1; through its interpretation and application of the penalty provisions in 18 U.S.C. § 1512(j); and by considering the evidence in the light of an incorrect burden of proof when determining whether to enhance his sentence in line with the above-referenced guidelines’ cross-reference and the sentencing statute. The district court’s interpretation of the sentencing statutes is reviewed de novo. E.g., United States v. Gonzalez, 250 F.3d 923, 925 (5th Cir.2001). And, although post-Booker, the Sentencing Guidelines are advisory only, and an ultimate sentence is reviewed for reasonableness under an abuse-of-discretion standard, the district court must still properly calculate the guideline-sentencing range for use in deciding on the sentence to impose. Gall v. United States, — U.S. —, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007). In that respect, its application of the guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005). Noting that violation of 18 U.S.C. § 1512(b)(2)(A) is addressed by Guideline § 2J1.2 (Obstruction of Justice), the pre-sentence investigation report (PSR) set Salazar’s base offense level at 14, as that guideline provides. Because he threatened to rape the wife" } ]

[ { "docid": "7720349", "title": "", "text": "Volpe, 487 F.2d 849, 852 (8th Cir. 1973): [T]he environmental statement “to some extent must be examined in light of the particular facts and circumstances surrounding the project * * * in order to determine its sufficiency. The extent of detail required must necessarily be related to the complexity of the environmental problems created by the project.” The discussion of environmental effects need not be “exhaustive” but rather need only provide sufficient information for a “reasoned choice of alternatives.” Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 836 (1972). See Sierra Club v. Froehlke, 345 F.Supp. 440, 444 (W.D. Wis.1972), where the court stated that Section 102(2) does not require that “each problem be documented from every angle to explore its every potential for good or ill.\" Despite the broad language as to procedural requirements found in Section 102(2), it is well recognized that an EIS must have terminal facilities. We have four volumes of EIS before us. They could easily be expanded into eight, or more. The courts must employ a rule of reason in the examination for adequacy of these statements, lest the litigation have no end. These considerations were well put recently by the Fifth Circuit: Section 102(2) contains the procedural requirements designed to compel all federal agencies contemplating actions having a significant impact on the environment to consider NEPA’s substantive policies and goals as enunciated in Section 101. The effectiveness of Section 102(2) depends upon compliance with procedural duties “to the fullest extent possible,” i. e., a compliance, the completeness of which is only limited by the agency’s statutory obligations. While no agency may properly adopt a less demanding standard for their effort, judicial review is based on a pragmatic standard. In determining whether an agency has complied with Section 102(2), we are governed by the rule of reason, i. e., we must recognize “on the one hand that the Act mandates that no agency limit its environmental activity by the use of an artificial framework and on the other that the act does not intend to impose an impossible standard" } ]

[ { "docid": "23031050", "title": "", "text": "is one which has been displaced, in whole or in part, by rail, highway, air or pipeline technology in any area wherein water carriage is available. The appropriateness of such a transportation scheme in the Tennessee-Tombigbee project area remains technically, economically, and ecologically speculative. Cf. Finish Allatoona’s Interstate Right, Inc. v. Brinegar, 484 F.2d 638 (5th Cir. 1973). The most important legal issue raised regarding Subsection 102(2) (C) is the proper interpretation of the requirement that an environmental impact statement be “detailed.” Obviously a statement must give more than a broad overview merely stating the location and height of a proposed dam or the beginning and ending points of a waterway project. But it is entirely unreasonable to think that Congress intended for an impact statement to document every particle of knowledge that an agency might compile in considering the proposed action. The district court quoted from Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972), the requirement that an impact statement provide “a basis for (a) evaluation of the benefits of the proposed project in light of its environmental risks, and (b) comparison of the net balance for the proposed project with the environmental risks presented by alternative courses of action.” The court also noted that the document was to be prepared in light of the knowledge that it was to be utilized both by the responsible agency and other decision makers. We agree. The detail required is that which is sufficient to enable those who did not have a part in its compilation to understand and consider meaningfully the factors involved. See Environmental Defense Fund v. Corps of Engineers, supra, 325 F.Supp. 749, at 759, and 342 F.Supp. at 1217. Our examination of the statement in the light of the testimony and the findings by the district court in the case at bar discloses no clear error in the court’s conclusion that this statement was sufficiently detailed. Plaintiffs complain that the statement omitted (1) a discussion of the effect of the anticipated population concentration in the area of the waterway, (2) any attempt" }, { "docid": "219285", "title": "", "text": "to meet the Nation’s needs are not infinite.’ Natural Resources Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 837 (1972). See Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F.Supp. 916, 933 (N.D.Miss.1972); Environmental Defense Fund, Inc. v. Corps of Engineers, 342 F.Supp. 1211, 1217 (E.D.Ark.1972). “As Judge Stuart noted, the environmental statement ‘to some extent must be examined in light of the particular facts and circumstances surrounding the project ... in order to determine its sufficiency. The extent of detail required must necessarily be related to the complexity of the environmental problems created by the project.’ The discussion of environmental effects need not be ‘exhaustive’ but rather need only provide sufficient information for a ‘reasoned choice of alternatives.’ Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 836 (1972). See Sierra Club v. Froehlke, 345 F.Supp. 440, 444 (W.D.Wis.1972), where the court stated that Section 102(2) does not require that ‘each problem be documented from every angle to explore its every potential for good or ill.’ ” By Footnote 13 the majority opinion refers in the case before us to Judge Lay’s dissent in Iowa Citizens for Environmental Quality, Inc. v. Volpe, supra. In that dissent, we find the same argument that is well stated in this Court’s opinion. But the Eighth Circuit held otherwise, and I prefer to cast my lot with the able opinion by Senior Judge Van Oosterhout when he wrote in that case, Iowa Citizens (at p. 854): Section 102(2)(C) of NEPA requires a detailed statement of the environmental impact of a federal project by the responsible federal official. It does not specifically state how such official shall obtain the information upon which his statement is based. Since the enactment of NEPA, FHWA with the acquiescence of the Council on Environmental Quality, and the knowledge of Congress, has consistently interpreted the provisions of NEPA as permitting the delegation of the physical act of gathering the information necessary for the preparation of Section 102(2)(C) EIS to the state highway departments recommending the proposed federal-aid highways. In my view, the" }, { "docid": "11672659", "title": "", "text": "of the statement that the objective and thorough evaluation of the environmental impact of the proposed project is to be accomplished. The thrust of NEPA is that all pertinent environmental data be gathered in one place, i. e., the “statement”, there constituting a discussion of all relative environmental impacts of a proposed course or alternative courses of action which reflects that the agency has given all pertinent environmental matters a “hard look” and has made a “good faith, objective, and reasonable presentation of the subject areas mandated by NEPA ...” Manygoats v. Kleppe, 558 F.2d 556, 560 (10th Cir. 1977). The discussion of environmental effects of all alternatives need not be exhaustive, but it must be such that sufficient information is contained therein to permit a “rule of reason” designation of alternatives beyond the primary proposal. In the last analysis, the test the agencies must meet in dealing with the environmental aspects of proposed action is anchored to the “rule of reason” which, broadly stated in Many-goats, supra, may be said to be this: If the environmental aspects of proposed actions are easily identifiable, they should be related in such detail that the consequences of the action are apparent. If, however, the effects cannot be readily ascertained and if the alternatives are deemed remote and only speculative possibilities, detailed discussion of environmental effects is not contemplated under NEPA. This is in keeping with the “rule of reason” employed in Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (D.C.Cir.1972): We reiterate that the discussion of environmental effects of alternatives need not be exhaustive. What is required is information sufficient to permit a reasoned choice of alternatives as far as environmental aspects are concerned. * * * * * * Furthermore, the requirement in NEPA of discussion as to reasonable alternatives does not require “crystal ball” inquiry . . . The statute must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible, given the obvious # * * * * * In the last analysis, the" }, { "docid": "219284", "title": "", "text": "pending such studies. It would be grossly impractical to do so. An exhaustive examination of every conceivable minor environmental effect of a given project, even though patently and cumulatively detrimental, is simply not required by NEPA. Is there not room for a rule of reason in the application of these statutes? The extent of detail required by NEPA in a highway case such as the one at hand, is well expressed in Iowa Citizens for Environmental Quality, Inc. v. Volpe, 487 F.2d 849 (8th Cir. 1973) as follows: “However, strict though the procedural requirements of Section 102(2) may be, they must be interpreted on a basis of reasonableness. Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289, 297 (8th Cir. 1972). ‘ . . . [I]f this requirement is not rubber, neither is it iron. The statute must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible, given the obvious, that the resources of energy and research — and time — available to meet the Nation’s needs are not infinite.’ Natural Resources Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 837 (1972). See Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F.Supp. 916, 933 (N.D.Miss.1972); Environmental Defense Fund, Inc. v. Corps of Engineers, 342 F.Supp. 1211, 1217 (E.D.Ark.1972). “As Judge Stuart noted, the environmental statement ‘to some extent must be examined in light of the particular facts and circumstances surrounding the project ... in order to determine its sufficiency. The extent of detail required must necessarily be related to the complexity of the environmental problems created by the project.’ The discussion of environmental effects need not be ‘exhaustive’ but rather need only provide sufficient information for a ‘reasoned choice of alternatives.’ Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 836 (1972). See Sierra Club v. Froehlke, 345 F.Supp. 440, 444 (W.D.Wis.1972), where the court stated that Section 102(2) does not require that ‘each problem be documented from every angle to explore its every potential for good or ill.’ ”" }, { "docid": "13282703", "title": "", "text": "ruling which was plainly wrong, or where the application of the law of the case would work a manifest injustice. See 21 C.J.S. Courts § 195 (1940). Here, however, the court would certainly err in not relying on Judge Beeks’ earlier decision. This precise question was passed upon by Judge Beeks when he stated that the consideration of alternatives was sufficient to conform to the requirements of NEPA. That decision was neither incorrect nor will it work a manifest injustice upon the parties in the action. Plaintiffs argue that Judge Beeks’ opinion manifests an intention for ongoing consideration of highway planning in the North Bend area. It is clear that Judge Beeks desired up-to-date documents which would take factors into account which might occur after his decision in 1972. Defendants have considered all reasonable recent developments in the final environmental impact statement. NEPA’s “alternatives” discussion is subject to a construction of reasonableness. Life of the Land v. Brinegar, 485 F.2d 460 (9th Cir. 1973); Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972). Accordingly, there is no need for an EIS to consider an alternative whose effect cannot be reasonably ascertained, and whose implementation is deemed remote and speculative. Rather, the EIS need only set forth those alternatives “sufficient to permit a reasoned choice”. Life of the Land v. Brinegar, supra, 485 F.2d 460. This has been done. FAILURE TO BALANCE ENVIRONMENTAL CONSIDERATIONS WITH ECONOMIC COSTS Section 102(2) (B) of NEPA, 42 U.S. C. § 4332(2) (B) (1973), provides that: (2) all agencies of the Federal Government shall— (B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations; . . . . This section was construed in Calvert Cliffs’ v. United States Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971), to require the consideration of environmental values in the process of determining the question of whether and in" }, { "docid": "13623655", "title": "", "text": "us to apply the “hesitate-to-overturn” standard in our review of the district court’s decision. Sierra Club, also unsurprisingly, contends that the circumstances of this case mandate that we apply the “considerable-degree-of-independence” standard. We need not resolve this dispute. We conclude that even if we apply the less deferential “considerable-degree-of-independence” standard, the district court’s decision must be affirmed. V. The Affidavits Sierra Club argues that the district court erred in admitting and considering the agencies’ supplemental affidavits to determine the adequacy of the EIS evaluation of secondary impacts. A. As stated in Part II, supra, NEPA requires an agency to prepare a “detailed statement” discussing, inter alia, the indirect effects of a proposed project. See 40 C.F.R. § 1502.16. This requirement serves many purposes. “The detailed statement aids a reviewing court to ascertain whether the agency has given [ ] good faith consideration to environmental concerns ..., provides environmental information to the public and interested departments of government, and prevents stubborn problems or significant criticism from being shielded from internal and external scrutiny.” Grazing Fields Farm, 626 F.2d at 1072 (citing Silva, 482 F.2d at 1284-85). Because public disclosure is a central purpose of NEPA, an EIS that does not include all that is required by NEPA may not be cured by memoranda or reports that are included in the administrative record but are not incorporated into the EIS itself. See id. at 1073; see also Watt, 716 F.2d at 951 (“unless a document has been publicly circulated and available for public comment, it does not satisfy NEPA’s EIS requirements”); Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 836 (D.C.Cir.1972) (holding that the EIS “must set forth the material contemplated by Congress in form suitable for the enlightenment of the others concerned”); Appalachian Mountain Club v. Brinegar, 394 F.Supp. 105, 122 (D.N.H.1975) (holding that a deficient EIS cannot be resurrected by supplemental information not processed in the same manner as a draft EIS because it denies the public “the opportunity to test, assess, and evaluate the data and make an informed judgment as to the validity of the conclusions" }, { "docid": "13863142", "title": "", "text": "substitute their judgment regarding the wisdom, advisability and benefits of undertaking or not undertaking a particular project. Conservation Council v. Froehlke, supra,) Environmental Defense Fund v. Hardin, 325 F.Supp. 1401 (D.D.C.1971); Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783 (D.C.Cir. 1971); Environmental Defense Fund v. Corps of Engineers, supra, 325 F.Supp. 728, at 738. The National Environmental Policy Act has been termed an “environmental full disclosure act”. Environmental Defense Fund v. Corps of Engineers, supra, 325 F.Supp. at 759. The detailed statement required by § 4332(2) (C) must contain such information as will alert the public, other interested governmental agencies, the Council on Environmental Quality, the President, and the Congress of possible environmental consequences of proposed agency action. Section 4332(2) (C) does not require that every conceivable study be performed and that each problem be documented from every angle to explore its every potential for good or ill. Rather, what is required is that officials and agencies take a “hard look” at environmental consequences. I am not convinced that plaintiffs have shown a sufficient probability of success on the merits of the contention that the statement in its present form does not constitute “full disclosure” as required by NEPA. With respect to the specific criticisms leveled against the statement in the areas of siltation, water quality, vegetation, and identification and discussion of alternatives, I find that the agency at least recognizes and puts interested persons on notice of problems which exist in these areas. With respect to the issue of alleged agency bias, plaintiffs contend that notwithstanding pro forma compliance with the procedural mandates of NEPA, the use of misleading statements, double standards, distortion of benefits and understatement of disadvantages, and partial disclosures demonstrates a total lack of open-minded willingness to consider fairly all alternatives in the Kickapoo Valley. The revelation of such an administrative bias in the environmental statement, plaintiffs contend, invalidates it. The issue o,f administrative bias in fulfilling the requirements of NEPA has been recognized and dealt with by only a few courts. See e. g., Environmental Defense Fund v. Corps of Engineers, 342 F.Supp. 1211" }, { "docid": "10287328", "title": "", "text": "whether the environmental effects of the proposed action and reasonable alternatives are sufficiently disclosed, discussed, and that conclusions are substantiated by supportive opinion and data. Environmental Defense Fund v. Corps of Engineers, 325 F.Supp. 749 (E.D.Ark., 1971); Natural Resources Defense Council v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972). b. Requirements of NEPA Section 102(2) (C) of NEPA requires, •first, that federal agencies make full and accurate disclosure of the environmental effects of proposed action and alternatives to such action; and, second, that the agencies give full and meaningful consideration to these effects and alternatives in their decision-making. Natural Resources Defense Council v. Morton, supra. In Environmental Defense Fund v. Corps of Engineers, supra, 325 F.Supp. at 759, Judge Eisele wrote: “At the very least, NEPA is an environmental full disclosure law . intended to make . . . decision-making more responsive and responsible. The ‘detailed statement’ required by § 102(2) (C) should, at a minimum, contain such information as will alert the President, the Council on Environmental Quality, the public, and, indeed, the Congress, to all known possible environmental consequences of proposed agency action.” But NEPA requires more than full disclosure of environmental consequences and project alternatives; NEPA requires full consideration of the same in agency decision making. Calvert Cliffs’ Coordinating Committee v. Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971). The environmental impact statement “must be written in language that is understandable to nontechnical minds and yet contain enough scientific reasoning to alert specialists to particular problems within the field of their expertise.” Environmental Defense Fund v. Corps of Engineers, 348 F.Supp. 916 (W.D.Miss., 1972). c. The Final Statement Omits and Misrepresents a Number of Important Environmental Effects of the Project (1) The Statement Misrepresents the Adverse Environmental Effects of the Project upon Fish Habitat The final Statement concedes that the Project will greatly increase the quantities of sediment carried downstream from the project area into the lower reaches of Chicod Creek and the Tar River. Immediately after construction, annual sediment deposit in the lower Chicod Creek will be 11,670 tons. Sediment yield at the" }, { "docid": "17525424", "title": "", "text": "meet the Nation’s needs are not infinite. Natural Resources Defense Council, Inc. (NRDC) v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 836 (1972). See also ICEQ v. Volpe, supra, 487 F.2d at 852. Thus, the EIS need contain only sufficient information to permit a reasoned choice of alternatives. Id.; NRDC v. Morton, supra, 458 F.2d at 837. The purpose of NEPA is not to require an objection free document, but rather to give Congress, the responsible agencies, and the public a useful decision-making tool. Cape Henry Bird Club v. Laird, 359 F.Supp. 404, 412 (W.D.Va.), aff’d per curiam, 484 F.2d 453 (4th Cir. 1973). We emphasize however that a final impact statement must not be so vague, general and conclusory that it cannot form the basis for reasonable evaluation and criticism. EDF v. Froehlke, supra, 473 F.2d at 348. The requirement of an objective, comprehensive and understandable “detailed statement” ensures that the EIS will fulfill its primary function to provide information as to the environmental consequences of a proposed action. 2. Substantive Review. In EDF v. Corps, supra, 470 F.2d at 298, we held that “ * * * courts have an obligation to review substantive agency decisions on the merits[,]” under NEPA. The standard of substantive review under NEPA is an extremely narrow one however. The reviewing court must first determine whether the agency reached its decision after a full, good faith consideration and balancing of environmental factors. EDF v. Corps, id., 470 F.2d at 300; EDF v. Froehlke, supra, 473 F.2d at 353. The court must then determine whether the agency’s actual balance of costs and benefits was arbitrary or clearly gave insufficient weight to environmental values. EDF v. Corps, supra, 470 F.2d at 300; EDF v. Froehlke, supra, 473 F.2d at 346; Calvert Cliffs’ Coordinating Committee v. U. S. Atomic Energy Commission, supra, 449 F.2d at 1115. A court is without power to substitute its judgment for that of the agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). As stated recently by the Supreme Court: Neither" }, { "docid": "22913426", "title": "", "text": "The Corps argues that despite these omissions, its impact statement should be considered sufficient because “at every step of the way, from preauthorization studies through detailed project planning, which includes recent environmental and mitigation studies, the voices of fish and wildlife interests have been heard, considered and reported to Congress.” We disagree. Nothing less than a complete impact statement can serve the important purposes of § 102(C) (iii) of NEPA. As the District of Columbia Circuit Court stated in Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 834 (D.C.Cir. 1972), “it is the essence and thrust of NEPA that the pertinent Statement serve to gather in one place a discussion of the relative environmental impact of alternatives.” Section 102(C) of NEPA requires that copies of the statement “shall be made available to the President, the Council on Environmental Quality and to the public * * * and shall accompany the proposal through the existing agency review processes.” A statement which includes a detailed discussion of all reasonable alternatives to a proposed project and their effects, see, Natural Resources Defense Council, Inc. v. Morton, supra at 834, insures that agency officials will be acquainted with the tradeoffs which will have to be made if any particular line of action is chosen. A complete impact study is an integral part of the ‘careful and informed decision-making process.” See, Calvert Cliffs Coord. Com. v. United States A.E. Com’n, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971). The complete impact statement must contain more than a catalog of environmental facts, however. The agency must also “explicate fully its course of inquiry, its analysis and its reasoning.” Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971). Thus, the complete formal impact statement represents an accessible means for opening up the agency decision-making process and subjecting it to critical evaluation by those outside the agency, including the public. Finally, the formal impact statement supplies a convenient record for courts to use in reviewing agency decisions on the merits to determine if they are in accord with the substantive policies of NEPA. To hold" }, { "docid": "6355797", "title": "", "text": "Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 837 (1972). See Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F.Supp. 916, 933 (N.D.Miss. 1972); Environmental Defense Fund, Inc. v. Corps of Engineers, 342 F.Supp. 1211, 1217 (E.D.Ark.1972). As Judge Stuart noted, the environmental statement “to some extent must be examined in light of the particular facts and circumstances surrounding the project * * * in order to determine its sufficiency. The extent of detail required must necessarily be related to the complexity of the environmental problems created by the project.” The discussion of environmental effects need not be “exhaustive” but rather need only provide sufficient information for a “reasoned choice of alternatives.” Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 836 (1972). See Sierra Club v. Froehlke, 345 F.Supp. 440, 444 (W.D. Wis.1972), where the court stated that Section 102(2) does not require that “each problem be documented from, every angle to explore its every potential for good or ill.” In the instant case the environmental consequences of the reasonable alternatives would not greatly differ. Judge Stuart succinctly described the factual situation: At the time the EIS was being prepared for project 1-35-6 the northern and southern termini for the project had been fixed by the construction of other segments of 1-35. In Iowa only this 27.4 mile segment of 1-35 had not been completed. The northern terminus is about 11 miles east of the southern terminus.. The area involved in any route between these two points is essentially the same tillable farm-ground. The impact on the natural environment would not differ greatly regardless of which particular route was selected. On the route selected only five families are being displaced. It does not affect any historical, archeological, geological, natural or recreational features or man made structures of any consequence, other than' the five homesteads previously mentioned. The greatest environmental impact will be the adverse effect on the farming operations caused by diagonal severance, the straightening of the Iowa River for less than one-half mile and the effect of the construction of a four lane limited" }, { "docid": "6355796", "title": "", "text": "factors which apply to any agency action. In short, the policies of NEPA enunciated in Section 101 must be considered and implemented in the policies, regulations, and public laws of the United States “to the fullest extent possible” through the procedural requirements of Section 102(2). Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289, 296-297 (8th Cir. 1972); Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1114-1115 (1971). However, strict though the procedural requirements of Section 102(2) may be, they must be interpreted on a basis of reasonableness. Environmental Defense Fund, Inc., v. Corps of Engineers, 470 F.2d 289, 297 (8th Cir. 1972). “* * * [I] f this requirement is not rubber, neither is it iron. The statute must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible, given the obvious, that the resources of energy and research — and time — available to meet the Nation’s needs are not infinite.” Natural Resources Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 837 (1972). See Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F.Supp. 916, 933 (N.D.Miss. 1972); Environmental Defense Fund, Inc. v. Corps of Engineers, 342 F.Supp. 1211, 1217 (E.D.Ark.1972). As Judge Stuart noted, the environmental statement “to some extent must be examined in light of the particular facts and circumstances surrounding the project * * * in order to determine its sufficiency. The extent of detail required must necessarily be related to the complexity of the environmental problems created by the project.” The discussion of environmental effects need not be “exhaustive” but rather need only provide sufficient information for a “reasoned choice of alternatives.” Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 836 (1972). See Sierra Club v. Froehlke, 345 F.Supp. 440, 444 (W.D. Wis.1972), where the court stated that Section 102(2) does not require that “each problem be documented from, every angle to explore its every potential for good or ill.” In the instant case the environmental consequences of the reasonable" }, { "docid": "12006573", "title": "", "text": "construction of the dam and reservoir. The judgment of the district court is affirmed. . 42 U.S.C. § 4321 et seq. . 76 Stat. 1180, 1190 (1962). . The basic policies and goals of NEPA are contained in Section 101. (42 U.S.C. § 4331). Section 102 (42 U.S.C. § 4332) provides the methods by which the environmen tal goals -will hopefully be achieved. The latter section provides, in pertinent part, as follows: The Congress authorizes and directs that, to the fullest extent possible: ... (2) all agencies of the Federal Government shall (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, [United States Code] and shall accompany the proposal through the existing agency review processes; . Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 838 (1972). . Sierra Club, supra, 345 F.Supp. 444. . Environmental Defense Fund, supra, 470 F.2d at 301. . Id. at 300. . The interest protected or regulated by the statute “at times, may reflect ‘aesthetic, conservational and recreational’ as well as economic values.” Data" }, { "docid": "10287327", "title": "", "text": "the Plaintiffs’ motion for preliminary injunction prior to the time for the letting of contracts, this Court on October 4, 1972, issued a temporary restraining order enjoining the Defendants from taking any further steps to contract for or commence construction or installation of the Project pending determination of the plaintiffs motion for preliminary injunction. B. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. There is a Substantial Probability that the Provisions of NEPA are Not Satisfied by the “Chicod Creek Watershed Environmental Statement” a. Scope of Judicial Review of the Environmental Impact Statement As the Court views this case, the ultimate decisions must not be made by the judiciary but by the executive and legislative branches of our government. This Court does not intend to substitute its judgment as to what would be the best use of Chicod Creek and its environs for that of the Congress or those administrative departments of the executive branch which are charged by the Congress with the duty of carrying out its mandate. The Court’s function is to determine whether the environmental effects of the proposed action and reasonable alternatives are sufficiently disclosed, discussed, and that conclusions are substantiated by supportive opinion and data. Environmental Defense Fund v. Corps of Engineers, 325 F.Supp. 749 (E.D.Ark., 1971); Natural Resources Defense Council v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972). b. Requirements of NEPA Section 102(2) (C) of NEPA requires, •first, that federal agencies make full and accurate disclosure of the environmental effects of proposed action and alternatives to such action; and, second, that the agencies give full and meaningful consideration to these effects and alternatives in their decision-making. Natural Resources Defense Council v. Morton, supra. In Environmental Defense Fund v. Corps of Engineers, supra, 325 F.Supp. at 759, Judge Eisele wrote: “At the very least, NEPA is an environmental full disclosure law . intended to make . . . decision-making more responsive and responsible. The ‘detailed statement’ required by § 102(2) (C) should, at a minimum, contain such information as will alert the President, the Council on Environmental Quality, the public, and, indeed, the" }, { "docid": "12000809", "title": "", "text": "discussion of alternatives to the proposed action and on the accuracy of the cost-benefit analysis. A. Alternatives Among the procedures prescribed by NEPA, § 102(2)(C) requires the preparation of a detailed statement discussing (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Section 102(2)(D) directs the agency to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal . . . Five alternatives are briefly discussed in the final EIS. The amplification contains a detailed description and illustrations of six alternative courses of action, including an analysis of construction costs, drainage problems, and the amount of agricultural land to be saved by each proposal. Plaintiffs charge, nevertheless, that the impact statement and amplification are deficient because the specific alternative of moving the levee to the west of their land and installing a pump to handle seepage was not considered. Defendants’ witness testified that plaintiffs’ specific proposal was not considered because of generally higher operating costs associated with a pumping station as opposed to a gravity flow system and the danger of introducing pesticides and herbicides into the lake. Defendants’ witness further testified that no other project in Arkansas had installed a pumping plant to solve water drainage problems. The duty to develop alternatives under § 102(2)(D) is subject to a rule of reasonableness. See Environmental Defense Fund, Inc, v. Corps of Engineers, 470 F.2d 289, 297 (8th Cir. 1972), citing Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 837 (1972). The discussion of alternatives need not be exhaustive if the impact statement presents sufficient information for a reasoned choice of alternatives. See Iowa Citizens For Environmental Quality, Inc. v. Volpe, 487 F.2d 849, 852 (8th Cir. 1973); Natural Resources Defense Council, Inc. v." }, { "docid": "15362828", "title": "", "text": "Act, 42 U.S.C. § 4332(2), requires all agencies of the federal government proposing “major Federal actions” to prepare “a detailed statement by the responsible official” concerning, inter alia, the environmental impact of the proposed action and any alternatives to the action, including the environmental consequences of the alternatives. NRDC v. Morton, 148 U.S.App.D.C. 5, 11-12, 458 F.2d 827, 833-34 (1972). This circuit has explained the purposes behind this requirement: “The ‘detailed statement’ required by § 4332(2)(C) serves at least three purposes. First, it permits the court to ascertain whether the agency has made a good faith effort to take into account the values -NEPA seeks to safeguard. To that end it must ‘explicate fully its course of inquiry, its analysis and its reasoning.' Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971) ; Appalachian Power Co. [v. EPA, 477 F.2d 495, 507 (4th Cir. 1973)]. See also Natural Resources Defense Council v. E. P. A., 478 F.2d 873 [875] (1st Cir. 1973); Environmental Defense Fund v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584 (1971). Second, it serves as an environmental full disclosure law, providing information which Congress thought the public should have concerning the particular environmental costs involved in a project. To that end, it ‘must be written in language that is understandable to nontechnical minds and yet contain enough scientific reasoning to alert specialists to particular problems within the field of their expertise.’ Environmental Defense Fund v. Corps of Engineers, 348 F.Supp. 916, 933 (W.D.Miss.1972). It cannot be composed of statements ‘too vague, too general and too conelusory.’ Environmental Defense Fund v. Froehlke, 473 F.2d 346, 348 (8th Cir. 1972) . Finally, and perhaps most substantively, the requirement of a detailed statement helps insure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug. A conelusory statement ‘unsupported by empirical or experimental data, scientific authorities, or explanatory information of any kind’ not only fails to crystallize issues, Natural Resources Defense Council v. Grant, 355 F.Supp. 280, 287 (E.D.N.C.1973) , but ‘affords no basis for a comparison of the" }, { "docid": "17525423", "title": "", "text": "of alternatives are clear. It thus precludes having stubborn problems swept under the rug by responsible agencies. EDF v. Froehlke, supra, 473 F.2d at 350. We have held that the test of compliance with the procedural provisions of § 102(2)(C) is one of good faith objectivity. EDF v. Corps, supra, 470 F.2d at 296. The touchstone of our inquiry is reason. Iowa Citizens for Environmental Quality, Inc. (ICEQ) v. Volpe, 487 F.2d 849, 852 (8th Cir. 1973) . While the detailed statement must of course be more than a pro forma ritual, EDF v. Froehlke, 368 F.Supp. 231, 237 (W.D.Mo.1973), aff’d per curiam sub nom. EDF v. Callaway, 497 F.2d 1340 (8th Cir. 1974) , the discussion of environmental effects and alternative courses of action need not be exhaustive. ICEQ v. Volpe, supra, 487 F.2d at 852. [NEPA] must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible, given the obvious, that the resources of energy and research — and time — available to meet the Nation’s needs are not infinite. Natural Resources Defense Council, Inc. (NRDC) v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 836 (1972). See also ICEQ v. Volpe, supra, 487 F.2d at 852. Thus, the EIS need contain only sufficient information to permit a reasoned choice of alternatives. Id.; NRDC v. Morton, supra, 458 F.2d at 837. The purpose of NEPA is not to require an objection free document, but rather to give Congress, the responsible agencies, and the public a useful decision-making tool. Cape Henry Bird Club v. Laird, 359 F.Supp. 404, 412 (W.D.Va.), aff’d per curiam, 484 F.2d 453 (4th Cir. 1973). We emphasize however that a final impact statement must not be so vague, general and conclusory that it cannot form the basis for reasonable evaluation and criticism. EDF v. Froehlke, supra, 473 F.2d at 348. The requirement of an objective, comprehensive and understandable “detailed statement” ensures that the EIS will fulfill its primary function to provide information as to the environmental consequences of a proposed action. 2. Substantive Review. In EDF" }, { "docid": "8370997", "title": "", "text": "these sections require [a] rigorous exploration and objective evaluation of alternative actions that might avoid some or all of the adverse environmental effects. . . . Sufficient analysis of such alternatives and their costs and impact on the environment should accompany the proposed action through the agency review process in order not to foreclose prematurely options which might have less detrimental effects. Further, recent decisions in our circuit have developed guidelines to direct agency compliance with these sections. In Calvert Cliffs’ Coordinating Committee v. A. E. C., 146 U.S.App.D.C. 33, 449 F. 2d 1109 (1971), we said the purpose of the requirement to discuss alternatives in the Impact Statement was to ensure that each agency decision maker has before him and takes into proper account all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance. Only in that fashion is it likely that the most intelligent, optimally beneficial decision will ultimately be made. 146 U.S.App.D.C. at 38, 449 F.2d at 1114. More recently in NRDC v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972) we spoke specifically to the scope of the alternatives requirement and the extent to which such alternatives must be discussed in the Impact Statement. There we adopted a rule of reason with respect to NEPA’s requirements concerning discussion of alternatives, finding that there must be “a presentation of the environmental risks incident to reasonable alternative courses of action.” We noted that the discussion of the environmental effects of alternatives need not be exhaustive, but “[w]hat is required is information sufficient to permit a reasoned choice of alternatives so far as environmental aspects are concerned.” Implicit in this rule of reason approach is that the environmental effects of such reasonable alternatives need be discussed only reasonably. We stated there that in discussing alternatives, NEPA did not require “ ‘crystal ball’ inquiry,” and that the “statute must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible, given the obvious, that the resources of energy" }, { "docid": "13863141", "title": "", "text": "the location, types, and quantities of vegetation present in the Kickapoo Valley have been made; and that various alternatives and combinations of alternatives are not discussed in the statement at all. For these reasons, plaintiffs contend that the present EIS does not constitute compliance with the mandates of § 4332(2) (C) “to the fullest extent possible” as required by NEPA. Courts which have confronted the issue of judicial review of environmental impact statements agree on two basic points. First, a court may review a statement filed pursuant to § 4332(2) (C) to determine whether it complies with the procedural requirements of NEPA. Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C.Cir. 1972) ; Environmental Defense Fund v. T. V. A., 339 F.Supp. 806 (E.D.Tenn.1972); Conservation Council v. Froehlke, 340 F.Supp. 222 (M.D.N.C. 1972); Harrisburg Coalition against Ruining Environment v. Volpe, 330 F.Supp. 918 (M.D.Pa.1971); Environmental Defense Fund v. Corps of Engineers (Tennessee Tombigbee) 3 E.R.C. 1085 (D.D.C.1971); Environmental Defense Fund v. Corps of Engineers (Gilham Dam) 325 F.Supp. 749 (E.D.Ark.1971). Second, courts may not substitute their judgment regarding the wisdom, advisability and benefits of undertaking or not undertaking a particular project. Conservation Council v. Froehlke, supra,) Environmental Defense Fund v. Hardin, 325 F.Supp. 1401 (D.D.C.1971); Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783 (D.C.Cir. 1971); Environmental Defense Fund v. Corps of Engineers, supra, 325 F.Supp. 728, at 738. The National Environmental Policy Act has been termed an “environmental full disclosure act”. Environmental Defense Fund v. Corps of Engineers, supra, 325 F.Supp. at 759. The detailed statement required by § 4332(2) (C) must contain such information as will alert the public, other interested governmental agencies, the Council on Environmental Quality, the President, and the Congress of possible environmental consequences of proposed agency action. Section 4332(2) (C) does not require that every conceivable study be performed and that each problem be documented from every angle to explore its every potential for good or ill. Rather, what is required is that officials and agencies take a “hard look” at environmental consequences. I am not convinced that plaintiffs have shown a sufficient" }, { "docid": "13282702", "title": "", "text": "impact in relation to the entire highway configuration of which it is a part but the environmental impact statement filed herein adequately performs that function. ALTERNATIVES Section 102(2) (C) (iii) of NEPA, 42 U.S.C. § 4332(2) (C) (1973), requires that the EIS include a discussion of “alternatives to the proposed action.” Plaintiffs contend that the environmental impact statement here fails to discuss some reasonable and feasible alternatives to the proposed action. This issue again requires a re-examination of the doctrine of the law of the case. This results from the fact that Judge Beeks has already specifically stated that defendants’ consideration of alternates was adequate. The court believes that the alternatives to the proposed corridor are adequately discussed in the “Advanced Planning Study,” which may be incorporated by reference in the new environmental impact statement. Daly v. Volpe, supra, at 258. Prior decisions or holdings of a court in the same litigation are not res judicata. Under the doctrine of law of the case, the court can permissibly disregard or correct any prior decision or ruling which was plainly wrong, or where the application of the law of the case would work a manifest injustice. See 21 C.J.S. Courts § 195 (1940). Here, however, the court would certainly err in not relying on Judge Beeks’ earlier decision. This precise question was passed upon by Judge Beeks when he stated that the consideration of alternatives was sufficient to conform to the requirements of NEPA. That decision was neither incorrect nor will it work a manifest injustice upon the parties in the action. Plaintiffs argue that Judge Beeks’ opinion manifests an intention for ongoing consideration of highway planning in the North Bend area. It is clear that Judge Beeks desired up-to-date documents which would take factors into account which might occur after his decision in 1972. Defendants have considered all reasonable recent developments in the final environmental impact statement. NEPA’s “alternatives” discussion is subject to a construction of reasonableness. Life of the Land v. Brinegar, 485 F.2d 460 (9th Cir. 1973); Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458" } ]

[ { "docid": "18177405", "title": "", "text": "an afterthought. No objection was raised to use of the deposition and no request made to bring Challenger back from California to testify at the hearing. A motion for a new trial may be decided on affidavits without the calling of witnesses. United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562; United States v. On Lee, 2 Cir., 201 F.2d 722, certiorari denied 345 U.S. 936, 73 S.Ct. 798, 97 L.Ed. 1364; Ewing v. United States, 77 U.S.App.D.C. 14, 135 F.2d 633, 638, certiorari denied 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145. Since the movant made no request that Challenger be brought on to testify the claim that the court abused its discretion in failing to do so sua sponte seems frivolous. It is important for the orderly administration of criminal justice that findings on conflicting evidence by the trial court on a motion for a new trial based on newly discovered evidence should remain undisturbed except for most extraordinary circumstances. See United States v. Johnson, 327 U.S. 106, 111, 66 S.Ct. 464, 90 L.Ed. 562. Where the newly discovered evidence consists of recantation of testimony given at the trial, such recantation is “looked upon with the utmost suspicion,” as this court pointed out in Harrison v. United States, 2 Cir., 7 F.2d 259, 262. The motion should be granted only when “the court is reasonably well satisfied that the testimony given by a material witness is false,” and particularly is this true when the recantation has itself been repudiated. Larrison v. United States, 7 Cir., 24 F.2d 82, 87; Gordon v. United States, 6 Cir., 178 F.2d 896, 900. Judge Dimock applied this rule, although he expressed his personal disapproval of it. We do not share his disapproval. The record well justified application of the rule. It disclosed Challenger’s reluctance to sign his recanting affidavit, his effort promptly to regain possession of it, and his repudiation of it in his deposition. The reasons he asserted for having signed the recanting affidavit are at least as plausible as those asserted by the Irizarrys for" } ]

[ { "docid": "975198", "title": "", "text": "327 U.S. 106, 111, n. 5, 66 S.Ct. 464, 90 L.Ed. 562 (1946). Likewise, we need not decide in this case which standard will control, for in our judgment a new trial would not be warranted under either standard. We examine the record in the light of the Larrison test. Under that standard a new trial will not be granted unless the “court is reasonably well satisfied that the testimony given by a material witness is false.” Larrison v. United States, 24 F.2d 82, 87 (7th Cir. 1928). The District Court here expressed no opinion as to the truth or falsity of the Johnsons’ trial testimony but found that the outcome would not have been affected even if Mrs. Johnson had testified that Mrs. Mackin was not present in the Johnson’s car. Having carefully examined the record however we conclude that no credible evidence was produced which could satisfy a court that the John-sons testified falsely at trial. Given this view of the record it is unnecessary to remand the case to the District Court for findings on the credibility of the Johnsons; for as the court observed in the Larrison case “it would be idle to return the record for the purpose of passing upon a motion that must be denied.” Id. at 87. We start our appraisal of the record from the premise that recantations by witnesses for the prosecution are viewed with suspicion. United States v. Vincent, 491 F.2d 1326, 1332 (2d Cir.), cert. denied, 419 U.S. 880, 95 S.Ct. 144, 42 L.Ed.2d 120 (1974); Johnson v. United States, 291 F.2d 150 (8th Cir.), cert. denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961); Newman v. United States, 238 F.2d 861 (5th Cir. 1956). Moreover, the evidence of Mrs. Johnson’s recantation is hearsay and at common law would not be admissible. Donnelly v. United States, 228 U.S. 243, 273, 33 S.Ct. 449, 57 L.Ed. 820 (1913); United States v. Alexander, 139 U.S.App.D.C. 163, 430 F.2d 904 (1970). Although the defendants argue that the recantation would now be admissible as a statement against interest — that" }, { "docid": "4454710", "title": "", "text": "259, 262. Ordinarily, ‘ * * * a new trial should be granted when, (a) The court is reasonably well satisfied that the testimony given by a material witness is false, (b) That without it the jury might have reached a different conclusion. * * * ’ Larrison v. United States, 7 Cir., 24 F.2d 82, at page 87. United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562; Gordon v. United States, 6 Cir., 178 F.2d 896, 900, cert. denied 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353; United States v. Troche, 2 Cir., 213 F.2d 401, 403; Harrison v. United States, 5 Cir., 191 F.2d 874; See Martin v. United States, 5 Cir., 17 F.2d 973, 976, cert. denied 275 U.S. 527, 48 S.Ct. 20, 72 L.Ed. 408, in which the recanting affidavit of a key witness was rejected since ‘that affidavit was obtained under very suspicious circumstances.’ —a situation paralleled here since mystery then and still prevails as to the making of Wiliford’s affidavit, and his real affirmance of it.” Newman v. United States, 5 Cir. 1956, 238 F.2d 861, 862 f. 1. The granting of a motion for new trial is a matter for the sound discretion of the trial court which will not be disturbed on appeal in the absence of a showing of abuse of that discretion. Reno v. United States, 5 Cir. 1965, 340 F.2d 307; Meyers v. United States, 5 Cir. 1962, 310 F.2d 801; Ledet v. United States, 5 Cir. 1962, 297 F.2d 737. In the context of the present factual situation we find no abuse of discretion by the trial court. Smith also contends that he was convicted by an illegally constituted jury. While this point was raised by a supplemental motion for new trial, in essence it was a Title 28, U.S.C., Sec. 2255 motion to vacate and set aside the conviction and judgment. It seems that the court reporter did not take down the names of the jurors at the trial, but rather she recorded only their numbers. Several incorrect numbers resulted in an" }, { "docid": "4454709", "title": "", "text": "PER CURIAM: Appellant Frank Smith comes before this Court with several attacks upon a denial by the district court of his motion for new trial. We affirm. Smith alleges that the district court erred in refusing to grant a new trial on the basis of newly discovered evidence. The motion was based on the post-trial affidavit of Richard Hinton, a chief prosecution witness at Smith’s trial, which stated that Hinton recanted his trial testimony and that this testimony against Smith was false and untrue. At the hearing on the motion the government introduced evidence that Hinton’s affidavit was made in the hope that Smith or his friends would be able to obtain a parole for Hinton, and that Hinton had told F.B.I. agents that his recantation was “a pack of lies”. Faced with this conflicting testimony the district judge concluded that Hinton had “recanted his recantation”. The government’s brief on this point contains a quote which bears repeating here: “Recantation is ‘looked upon with the utmost suspicion,’ Harrison v. United States, 2 Cir., 7 F.2d 259, 262. Ordinarily, ‘ * * * a new trial should be granted when, (a) The court is reasonably well satisfied that the testimony given by a material witness is false, (b) That without it the jury might have reached a different conclusion. * * * ’ Larrison v. United States, 7 Cir., 24 F.2d 82, at page 87. United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562; Gordon v. United States, 6 Cir., 178 F.2d 896, 900, cert. denied 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353; United States v. Troche, 2 Cir., 213 F.2d 401, 403; Harrison v. United States, 5 Cir., 191 F.2d 874; See Martin v. United States, 5 Cir., 17 F.2d 973, 976, cert. denied 275 U.S. 527, 48 S.Ct. 20, 72 L.Ed. 408, in which the recanting affidavit of a key witness was rejected since ‘that affidavit was obtained under very suspicious circumstances.’ —a situation paralleled here since mystery then and still prevails as to the making of Wiliford’s affidavit, and his real affirmance" }, { "docid": "18177408", "title": "", "text": "262. In each of the cases cited by my colleagues — other than Harrison v. United States, supra, which favors the defendant here, and Larrison v. United States, 7 Cir., 24 F.2d 82—the upper court has refused to reverse when the trial judge denied a motion for new trial for newly-discovered evidence. In such cases, the upper courts have said that they will not reverse for abuse of discretion unless it appears — from a finding by the trial judge or otherwise — that an important witness gave perjured testimony at the trial. But here the question is not whether we should hold erroneous the-judge’s exercise of discretion. The question here is this: Unlike United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562, and Gordon v. United States, 6 Cir., 178 F.2d 896, 900, in each of which the trial judge found that the witness whose testimony defendant assailed had testified truthfully at the trial, here the trial judge explicitly stated that he could not ascertain whether or not the witness had lied (1) at the trial or (2) when he recanted his testimony at the trial or (3) when he recanted that recantation. The judge, having said that, in his opinion, the witness was “completely irresponsible,” went on to say that he wanted to grant a new trial but did not, solely because he was precluded from doing so by a \"rule of law” which he regarded as forbidding him to use his discretion in such circumstances. There is no such “rule of law.” A trial judge, before entry of judgment and if the motion is timely made, has a wide discretion to order a new trial (as distinguished from ordering a directed verdict or entering a judgment n. o. v.); he may do so if he has serious doubts about the credibility of a major witness; when he exercises his sound discretion to order a new trial, his order is reviewable (if at all) only for “abuse of discretion.” See, e. g., Marsh v. Illinois Cent. R. Co., 5 Cir., 175 F.2d 498. For" }, { "docid": "884493", "title": "", "text": "that the testimony given by a material witness is false, (b) That without it the jury might have reached a different conclusion, (c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it for it did not know of its falsity until after the trial. Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928) (emphasis in original). See also United States v. Lombardozzi, 343 F.2d 127, 128 (2d Cir.), cert. denied, 381 U.S. 938, 85 S.Ct. 1771, 14 L.Ed.2d 702 (1965); Newman v. United States, 238 F.2d 861, 862, n. 1 (5th Cir. 1956); Gordon v. United States, 178 F.2d 896, 900 (6th Cir. 1949), cert. denied, 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353 (1950). . See note 102, supra. . Brodie v. United States, 111 U.S.App.D.C. 170, 172-173, 295 F.2d 157, 15-160 (1961); Benton v. United States, 88 U.S.App.D.C. 158, 160, 188 F.2d 625, 627 (1951); United States v. Schartner, 285 F.Supp. 193, 196 (E.D.Pa. 1967). . See , e. g., Thompson v. United States, 88 U.S.App.D.C. 235, 236, 188 F.2d 652, 653 (1951), where we stated the requirements for such cases as follows: To obtain a new trial because of newly discovered evidence (1) the evidence must have been discovered since the trial; (2) the party seeking the new trial must show diligence in the attempt to procure the newly discovered evidence; (3) the evidence relied on must not be merely cumulative or impeaching; (4) it must be material to the issues involved; and (5) of such nature that in a new trial it would probably produce an acquittal. . Compare Moore v. Illinois, supra note 85, 408 U.S. at 798, 92 S.Ct. 2562. The hotel bill indicates a check-out time at about 8:30 a.m. The alleged meeting with Criswell at the airport supposedly occurred no earlier than 10:00 a.m. on that day. . See text supra at note 103. Nor do we believe that the airport identification which Ms. Norton related, even if proven false, bore such significance to Anderson’s" }, { "docid": "17265949", "title": "", "text": "at a post-trial hearing grounded upon a recantation of testimony, the court is not to consider which version of the witness’s story is true, but rather only to ensure that there has been no prosecutorial misconduct by way of intimidation or threats to testify falsely. Since the district court found that the witness had neither been intimidated or threatened, nor coached or invited to testify falsely, denial of the motion followed. The district court in this case misconceived the proper scope of the inquiry it should have made. The applicable standards for the granting of a new trial based upon a witness’s recantation were set out in Larrison v. United States, 24 F.2d 82, 87-88 (7 Cir. 1928). There, the court stated that a new trial should be granted when: (a) The court is reasonably well satisfied that the testimony given by a material witness is false. : (b) That without it the jury might have reached a different conclusion (emphasis in original). (c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial. Accord, Newman v. United States, 238 F.2d 861, 862 n.4 (5 Cir. 1956); Gordon v. United States, 178 F.2d 896, 900 (6 Cir. 1949), cert. denied, 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353 (1950); 2 Wright Federal Practice and Procedure § 557 at 525 (1969). These standards delineate the scope of the district court’s proper inquiry. In this case, the district court failed to make even the first of the three necessary determinations. We therefore remand the case for a new determination of Wallace’s motion for a new trial in the light of the Larrison case’s standards. We reject Wallace’s contention that we should order a new trial based on the recantation. At best, it is difficult for an appellate court to assess the veracity of witnesses by reference to a bare record. The district judge is in a far better position to determine which version of the testimony of" }, { "docid": "23382059", "title": "", "text": "undisputed and proved by other evidence. On each occasion Williford recognized and identified Newman, and Newman’s presence there, on at least one time, was corroborated by Williford’s casual, but accurate, description of Newman’s passenger car which admittedly was of distinctive model and color. Williford was driving the truck with a full load of moonshine on October 12 when officers, by prearrangement, trailed the truck, overtook it and seized the contraband. To destroy this positive linking of Williford to a truck Newman had just bought and registered ten days before, Newman offered an unrecorded bill of sale dated October 10 made out to a person never identified, and notarized by the same notary who had acknowledged another spurious vehicle title paper containing false information. In addition, testimony on the hearing of the motion by a Government agent showed that Williford, during his actions as an informer, reported many facts about Newman and his illicit activities and plans which were corroborated or turned out to be true. The Judge’s conclusion was reasonable and well founded. He did not abuse his discretion in overruling the motion for new trial, Harrison v. United States, 5 Cir., 191 F.2d 874, 876. Affirmed. . Recantation is “looked upon with the utmost suspicion,” Harrison v. United States, 2 Cir., 7 F.2d 259, 262. Ordinarily, “ * * * a new trial should be granted when, (a) The court is reasonably well satisfied that the testimony given by a material witness is false. (b) That without it the jury might have reached a different conclusion. * * * ” Larrison v. United States, 7 Cir., 24 F.2d 82, at page 87. United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562; Gordon v. United States, 6 Cir., 178 F.2d 896, 900, certiorari denied 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1335; United States v. Troche, 2 Cir., 213 F.2d 401, 403; Harrison v. United States, 5 Cir., 191 F.2d 874; see, Martin v. United States, 5 Cir., 17 F.2d 973, 976, certiorari denied 275 U.S. 527, 48 S.Ct. 20, 72 L.Ed. 408, in which" }, { "docid": "16818392", "title": "", "text": "“Where the newly discovered evidence consists of recantation of testimony given at the trial, such recantation is ‘looked upon with the utmost suspicion,’ as this court pointed out in Harrison v. United States, 2 Cir., 7 F.2d 259, 262. The motion should be granted only when . ‘the court is reasonably well satisfied that the testimony given by a material witness is false,’ * * *.\" In this case the trial judge heard the testimony of Bebout at the trial and again at the hearing on the motion for a new trial. He was exceptionally well qualified to pass upon the truth or falsity of Bebout’s affidavit. At the close of the latter hearing, he made an affirmative finding as follows: “This Court is of the opinion, and concludes, under all of the circumstances, that the Affiant’s affidavit submitted to this Court is false and that the * * * witness told the truth at the trial.” During the trial before the jury the defense introduced various letters written from prison by Bebout to defendant and a recantation by Bebout of all statements made by him implicating defendant in the robbery, all written at a time when Bebout was urging defendant and his mother to arrange for his release on bond. This court has read the complete transcript of Bebout’s testimony before the jury, and also the transcript of his testimony at the hearing on the motion for a new trial. His testimony before the jury was detailed and explicit, but at the later hearing his answers were general and vague. It was reasonable for the trial judge to conclude that the latest affidavit of this witness, relied upon in support of the motion of a new trial, was simply another in a series of contradictory documents reflecting upon the credibility of the witness, and that this affidavit should be rejected as false. As said by this court in Gordon v. United States, 178 F.2d 896, 900 (C.A. 6), cert. denied, 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353: “In the instant case, the first and primary ground, above" }, { "docid": "10710945", "title": "", "text": "Such an allegation by the defense ordinarily will not support a motion for a new trial, because new evidence which is “merely cumulative or impeaching” is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial. Id. (footnote omitted). Motions for a new trial based on recanted testimony of a material witness are looked upon with the utmost suspicion. Batsell v. United States, 8 Cir. 1968, 403 F.2d 395, 403, cert. denied, 1969, 393 U.S. 1094, 89 S.Ct. 865, 21 L.Ed.2d 785; Newman v. United States, 5 Cir. 1956, 238 F.2d 861, 862 n. 1. We agree with the lower court’s findings that the circumstances surrounding Ho-man’s recantation renders it particularly suspect. The evidence impeaching Ho-man was overwhelming and fully supports the conclusion that he failed to demonstrate that his trial testimony was false. Accordingly, we find no abuse of discretion in the denial of the motion for a new trial. United States v. Johnson, 1946, 327 U.S. 106, 111, 66 S.Ct. 464, 90 L.Ed. 562; United States v. Hersh, 5 Cir. 1969, 415 F.2d 835, 837-838; Batsell v. United States, supra, 403 F.2d at 403; Reno v. United States, 5 Cir. 1965, 340 F.2d 307, 308; Newman v. United States, supra, 238 F.2d at 862-863; Harrison v. United States, 5 Cir. 1951, 191 F.2d 874, 876; see Weiss v. United States, 5 Cir. 1941, 122 F.2d 675, 692, cert. denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550. Nolte’s other points on appeal have been considered and are without merit. Affirmed. . After Nolte’s first appeal was perfected, we remanded this case for the limited purpose of permitting the trial court to hold an evidentiary hearing on Nolte’s motion for a new trial under Rule 33, Fed.R. Crim.P. United States v. Nolte, 5 Cir. 1969, [No. 27,352, Nov. 12, 1969]. Nolte’s appeal from the denial of his motion for a new trial was thereupon consolidated with his first appeal. . Atkins can hardly be viewed as a totally disinterested witness. For example, he conceded on cross-examination that Nolte had" }, { "docid": "17265950", "title": "", "text": "when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial. Accord, Newman v. United States, 238 F.2d 861, 862 n.4 (5 Cir. 1956); Gordon v. United States, 178 F.2d 896, 900 (6 Cir. 1949), cert. denied, 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353 (1950); 2 Wright Federal Practice and Procedure § 557 at 525 (1969). These standards delineate the scope of the district court’s proper inquiry. In this case, the district court failed to make even the first of the three necessary determinations. We therefore remand the case for a new determination of Wallace’s motion for a new trial in the light of the Larrison case’s standards. We reject Wallace’s contention that we should order a new trial based on the recantation. At best, it is difficult for an appellate court to assess the veracity of witnesses by reference to a bare record. The district judge is in a far better position to determine which version of the testimony of George Edgar Wallace, Jr., is more likely the truth, having observed the demeanor of the witness both at trial and at the post-trial hearing. See United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562 (1946); United States v. Johnson, 487 F.2d 1278 (4 Cir. 1973). Of course, from this record we can say that if it is determined that George Edgar Wallace, Jr., told an untruth at trial, the jury unquestionably might have found defendant not guilty if his brother’s testimony were not in the case. We express no view, however, as to whether defendant was surprised by his brother’s testimony or learned of its falsity only after trial. Vacated and remanded. . The jury was charged: A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share" }, { "docid": "23382060", "title": "", "text": "not abuse his discretion in overruling the motion for new trial, Harrison v. United States, 5 Cir., 191 F.2d 874, 876. Affirmed. . Recantation is “looked upon with the utmost suspicion,” Harrison v. United States, 2 Cir., 7 F.2d 259, 262. Ordinarily, “ * * * a new trial should be granted when, (a) The court is reasonably well satisfied that the testimony given by a material witness is false. (b) That without it the jury might have reached a different conclusion. * * * ” Larrison v. United States, 7 Cir., 24 F.2d 82, at page 87. United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562; Gordon v. United States, 6 Cir., 178 F.2d 896, 900, certiorari denied 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1335; United States v. Troche, 2 Cir., 213 F.2d 401, 403; Harrison v. United States, 5 Cir., 191 F.2d 874; see, Martin v. United States, 5 Cir., 17 F.2d 973, 976, certiorari denied 275 U.S. 527, 48 S.Ct. 20, 72 L.Ed. 408, in which the recanting affidavit of a key -witness was rejected since “that affidavit was obtained under very suspicious circumstances.” — a situation paralleled here since mystery then and still prevails as to the making of Williford’s affidavit, and his real affirmance of it. . If recantation is normally to be viewed with suspicion, it is doubly infirm when couched, as here, in the vaguest of language impling a mistaken opinion as to identification: “Affiant [Williford] * * * says * * * that he testified as a witness for the Government * * * and in his testimony * * * identified B. H. Newman as being one of said co-defendants connected with the case and in the violations therein charged, that as a matter of fact, affiant had seen B. H. Newman only two or three times before said occasions referred to in my testimony when I identified him, and on said occasions when I did identify him it was at night and, as a matter of fact, I was not correct in so identifying" }, { "docid": "13388297", "title": "", "text": "of Appeals found that, in the case of a recantation, the “first test to be applied by the judge is whether the court is reasonably well satisfied that the prior testimony was false.’ ” Chambers, 944 F.2d at 1264 (quoting United States v. Kearney, 682 F.2d 214, 220 (D.C.Cir.1982), in turn citing Gordon v. United States, 178 F.2d 896, 900 (6th Cir.1949), cert. denied, 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353 (1950); emphasis added by this court). Furthermore, the court observed, “ ‘[i]f that first and primary ground is not satisfied, the primary ground for granting the new trial is lacking.’ ” Id. (again quoting Kearney). Similarly, in United States v. Badger, 983 F.2d 1443, 1456 (7th Cir.), cert. denied, 508 U.S. 928, 113 S.Ct. 2391, 124 L.Ed.2d 293 (1993), the Seventh Circuit Court of Appeals held that a new trial based on recantation of trial testimony “is necessary when 1) the court is satisfied that the testimony given by a material witness is false; 2) without the false testimony the jury might have reached a different conclusion; and 3) the party seeking the new trial was taken by surprise when the false testimony was given and could not address that falsity until after trial.” Id. (emphasis added). This court believes that a finding that the trial testimony was false is not precisely equivalent to a finding that a recantation is credible, which is one of the requirements for a new trial based on recantation in this circuit. See Grey Bear, 116 F.3d at 350 (“It is the job of the district court, either on affidavits or after an evidentiary hearing ..., to decide whether the newly discovered evidence is credible.”). Although a finding that a recantation is credible raises an inference, even a strong inference, that the trial testimony was false, it does not compel that conclusion. In this circuit, the impact of the conclusion that the recantation is “credible” is weighed further against a relatively high mark-the court must determine whether a credible recantation would “probably” produce an acquittal on retrial. See Grey Bear, 116 F.3d" }, { "docid": "16818391", "title": "", "text": "trial will not be granted on the grounds of newly discovered evidence, unless such evidence is of a nature that, on a new trial, it would probably bring about a different result. It is for the trial judge to determine the probable effect it would have in changing the result of another trial; and in the absence of a clear showing of abuse of discretion, his action must stand.” To like effect see United States v. Barnhill, 305 F.2d 164 (C.A. 6), cert. denied, 371 U.S. 865, 83 S.Ct. 126, 9 L.Ed.2d 102; Ashe v. United States, 288 F.2d 725, 733 (C.A. 6). In United States v. Johnson, 327 U.S. 106, 111, 66 S.Ct. 464, 466, 90 L.Ed. 562, the Supreme Court said: “[W]e think it important for the^ orderly administration of criminal justice that findings on conflicting evidence by trial courts on motions for new trial based on newly discovered evidence remain undisturbed except for most extraordinary circumstances, * * In United States v. Troche, 213 F.2d 401, 403 (C.A. 2), the Court said: “Where the newly discovered evidence consists of recantation of testimony given at the trial, such recantation is ‘looked upon with the utmost suspicion,’ as this court pointed out in Harrison v. United States, 2 Cir., 7 F.2d 259, 262. The motion should be granted only when . ‘the court is reasonably well satisfied that the testimony given by a material witness is false,’ * * *.\" In this case the trial judge heard the testimony of Bebout at the trial and again at the hearing on the motion for a new trial. He was exceptionally well qualified to pass upon the truth or falsity of Bebout’s affidavit. At the close of the latter hearing, he made an affirmative finding as follows: “This Court is of the opinion, and concludes, under all of the circumstances, that the Affiant’s affidavit submitted to this Court is false and that the * * * witness told the truth at the trial.” During the trial before the jury the defense introduced various letters written from prison by Bebout to defendant" }, { "docid": "22173102", "title": "", "text": "speaking to facts, in relation to which there was evidence on the trial. 5th. That the affidavit of the witness himself should be produced, or its absence accounted for. And 6th, a new trial will not be granted, if the only object of the testimony is to impeach the character or credit of a witness.” The other test was developed in the case of Larrison v. United States, 7 Cir., 24 F.2d 82, wherein the following three requirements were specified: “(a) The court is reasonably well satisfied that the testimony given by a material witness is false. “(b) That without it the jury might have reached a different conclusion. “(c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial.” 24 F.2d at pages 87-88. The Government contends that the appellant’s motion should be determined by application of the Berry rule, while the appellant urges that the Larrison rule is the appropriate test. It has been stated that the Larrison rule is limited to cases of “recantation or where it has been proved that false testimony was given at the trial.” United States v. Hiss, D.C.S.D.N.Y., 107 F.Supp. 128, 136, affirmed 2 Cir., 201 F.2d 372, certiorari denied 345 U.S. 942, 73 S.Ct. 830, 97 L.Ed. 1368. But we need not decide whether appellant’s claim comes within the Berry rule or the Larrison rule, or perhaps fits into a category of its own, because the same result is reached no matter which rule is applied. It is well settled that motions for new trials are not favored and should be granted only with great caution. United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562; Weiss v. United States, 5 Cir., 122 F.2d 675, certiorari denied 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550. We think it fundamental that a defendant seeking a new trial under any theory must satisfy the district court that the material asserted to be newly discovered is" }, { "docid": "884492", "title": "", "text": "for a new trial based on any other grounds shall be made within 7 days after verdict or finding of guilty or within such further time as the court may fix during the 7-day period.” Fed.R.Crim.P. 33. . Moore v. Illinois, supra note 85, 408 U.S. at 797-798, 92 S.Ct. 2562, 33 L.Ed.2d 706; Giglio v. United States, supra note 85, 405 U.S. at 153-154, 92 S.Ct. 763, 31 L.Ed.2d 104; Miller v. Pate, 386 U.S. 1, 7, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Napue v. Illinois, supra note 85, 360 U.S. at 269, 79 S.Ct. 1173, 3-L.Ed.2d 1217; Alcorta v. Texas, supra note 85, 355 U.S. at 31-32, 78 S.Ct. 103, 2 L.Ed.2d 9; Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214 (1942); Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935). . See cases cited supra note 103. . It is said that three conditions must be satisfied before such a motion will be granted: (a) The court is reasonably well satisfied that the testimony given by a material witness is false, (b) That without it the jury might have reached a different conclusion, (c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it for it did not know of its falsity until after the trial. Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928) (emphasis in original). See also United States v. Lombardozzi, 343 F.2d 127, 128 (2d Cir.), cert. denied, 381 U.S. 938, 85 S.Ct. 1771, 14 L.Ed.2d 702 (1965); Newman v. United States, 238 F.2d 861, 862, n. 1 (5th Cir. 1956); Gordon v. United States, 178 F.2d 896, 900 (6th Cir. 1949), cert. denied, 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353 (1950). . See note 102, supra. . Brodie v. United States, 111 U.S.App.D.C. 170, 172-173, 295 F.2d 157, 15-160 (1961); Benton v. United States, 88 U.S.App.D.C. 158, 160, 188 F.2d 625, 627 (1951); United States v. Schartner, 285 F.Supp. 193, 196 (E.D.Pa. 1967). ." }, { "docid": "15293730", "title": "", "text": "See also United States v. Johnson, 327 U.S. 106, at page 110, 66 S.Ct. 464, 90 L.Ed. 562. A separate rule is that applied in Lar-rison v. United States, 7 Cir., 24 F.2d 82, 87, which allows a new trial where: “(a) The court is reasonably well satisfied that the testimony given by a material witness is false. “(b) That without it the jury might have reached a different conclusion. “(c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial.” In United States v. Johnson, 7 Cir., 142 F. 2d 588, at page 591, the court explained the distinction between and the applicability of the two rules, pointing out that the Lar-rison rule is applicable where there has been a recantation or where it has been proved that false testimony was given at the trial. See Gordon v. United States, 6 Cir., 178 F.2d 896. Otherwise, the Berry rule is applied. Accord, United States v. Johnson, 7 Cir., 149 F.2d 31, at page 43, reversed on other grounds in 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562. There is general concurrence of authority that the granting of new trials on the ground of after-discovered evidence is not favored by the courts and they are granted with great caution. Weiss v. United States, 5 Cir., 122 F.2d 675, page 691; Long v. United States, 10 Cir., 139 F.2d 652, at page 654. The contention of the defendant is that under either rule he is entitled to another trial. On the contrary, I am of the opinion, after a full consideration of all the defendant has offered, that under either rule he is not entitled to a new trial. The defendant has submitted no proof, which would support a finding by a jury that the typewriter received in evidence at the trial was constructed by or for Chambers or that the typewriter was not the original Hiss machine. There is no newly discovered evidence which would" }, { "docid": "5378608", "title": "", "text": "evidence probably would have resulted in acquittal.” This test is then described in a footnote in the following terms: “This is the standard generally applied by lower courts in evaluating motions for new trial under Fed.Rule Crim.Proc. 33 based on newly discovered evidence.” Id. at 111 n. 19, 96 S.Ct. at 2401. Appellant correctly notes that several courts of appeals have established somewhat differing standards as to this fifth criterion, citing United States v. Strauss, 443 F.2d 986, 989 (1st Cir. 1971), for the proposition that this court has not yet resolved the issue. In that case we said: As the Supreme Court has noted, courts have traditionally applied two somewhat different tests for determining whether newly discovered evidence warrants a . new trial. See United States v. Johnson, 327 U.S. 106, 111 n. 5, 66 S.Ct. 464, 90 L.Ed. 562 (1946). The majority rule, derived from the case of Berry v. Georgia, 10 Ga. 511 (1851), requires that the evidence “must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.” Johnson v. United States, 32 F.2d 127, 130 (8th Cir. 1929); accord, United States v. Craft, 421 F.2d 693 (9th Cir. 1970); Hudson v. United States, 387 F.2d 331 (5th Cir. 1967), cert. denied, 393 U.S. 876, 89 S.Ct. 172, 21 L.Ed.2d 147 (1968); Anderson v. United States, 369 F.2d 11 (8th Cir. 1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1171, 18 L.Ed.2d 136 (1967). The Seventh Circuit rule, first announced in Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928), is somewhat less stringent. Under the Larrison rule a new trial must be granted if, on the basis of the newly discovered evidence, “(a) The court is reasonably well satisfied that the testimony given by a material witness is false [and] (b) That without it the jury might have reached a different conclusion.” Id. at 87; accord, Gordon v. United States, 178 F.2d 896, 900 (6th Cir. 1949). Id. at 989 (footnote omitted) (emphasis in original). This court in Strauss decided that there" }, { "docid": "23382057", "title": "", "text": "grant of a new trial. To honor such a claim — to test right by paper form, not substance— would be abdication of constitutional duty, frequently to persons who, as participants, co-conspirators, or actors in the criminal activity initially charged, might from a variety of base motives, or importunities, be impelled, by recantation, to come to the aid of a person whose conviction has been brought about by their testimony, confident, as experienced criminal litigants, that the unusual difficulties in successful prosecution for perjury would expose them to no real peril. The function, on well-defined standards, is that of the District Judge for it is “ * * * important for the orderly administration of criminal justice that findings on conflicting evidence by trial courts on motions for new trial based on newly discovered evidence remain undisturbed except for most ex traordinary circumstances * * *,’ United States v. Johnson, 327 U.S. 106, at page 111, 66 S.Ct. 464, at page 466, 90 L.Ed. 562, at page 565. If the District Judge, on the basis of the whole record of the original trial and the matters presented on the hearing of the motion, believes the statements in the affidavit of recantation to be false and is not reasonably well satisfied that the testimony given by the witness on the trial was false, the decision is for him to reach for he is “not at liberty to shift upon the shoulders of another jury his own responsibility, but [is] charged with the responsibility to seek the truth himself * * Gordon v. United States, 6 Cir., 178 F.2d 896, 900, certiorari denied 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353. The Trial Judge had ample basis for impliedly concluding that Williford’s trial testimony, not his affidavit, was the truth. As a paid Government informer, he had, so he testified, between October 2 and October 12 hauled several loads of moonshine in a truck admittedly purchased by Newman and registered in his name. The truck was, on at least one of these occasions, parked at Newman’s residence whose location was likewise" }, { "docid": "13388296", "title": "", "text": "of a live witness is clearly erroneous, and we have no disposition to do so here____ Grey Bear, 116 F.3d at 350-51. See also Provost, 969 F.2d at 620 (probability that a recantation would lead to acquittal “rests in large part on the credibility of the recantation,” citing Bednar, 776 F.2d at 238-39). To put it another way, “if the court concludes that the recantation is not credible and does not affect the credibility of the original testimony, then it probably would not produce an acquittal on retrial.” Provost, 969 F.2d at 620. Thus, credibility of the recantation is the key to the impact of the recantation upon the probability that the recantation will lead to an acquittal. Indeed, some circuit courts of appeals appear to require something more than a finding that the recantation is “credible.” In United States v. Chambers, 944 F.2d 1253 (6th Cir.1991), after finding that a defendant seeking a new trial based on “newly discovered evidence” must demonstrate essentially the same elements required in this circuit, the Sixth Circuit Court of Appeals found that, in the case of a recantation, the “first test to be applied by the judge is whether the court is reasonably well satisfied that the prior testimony was false.’ ” Chambers, 944 F.2d at 1264 (quoting United States v. Kearney, 682 F.2d 214, 220 (D.C.Cir.1982), in turn citing Gordon v. United States, 178 F.2d 896, 900 (6th Cir.1949), cert. denied, 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353 (1950); emphasis added by this court). Furthermore, the court observed, “ ‘[i]f that first and primary ground is not satisfied, the primary ground for granting the new trial is lacking.’ ” Id. (again quoting Kearney). Similarly, in United States v. Badger, 983 F.2d 1443, 1456 (7th Cir.), cert. denied, 508 U.S. 928, 113 S.Ct. 2391, 124 L.Ed.2d 293 (1993), the Seventh Circuit Court of Appeals held that a new trial based on recantation of trial testimony “is necessary when 1) the court is satisfied that the testimony given by a material witness is false; 2) without the false testimony the jury might" }, { "docid": "10710944", "title": "", "text": "had visited him in the Terre Haute Penitentiary five days after Homan testified at the trial. During this visit Nolte promised Homan a piece of property and a house if he would give a statement indicating that Nolte was not aware of the source of the money. Homan also told Grace that he had twice received money from a Pasadena, Texas, address — apparently from Nolte’s Pasadena office. While we agree with the general principle in Mesarosh v. United States, 1956, 352 U.S. 1, 9, 77 S.Ct. 1, 5, 1 L.Ed.2d 1, relied on by Nolte, that “[t]he dignity of the United States Government will not permit the conviction of any person on tainted testimony,” the Supreme Court took pains to point out: It must be remembered that we are not dealing here with a motion for a new trial initiated by the defense, under Rule 33 of the Federal Rules of Criminal Procedure, presenting untruthful statements by a Government witness subsequent to the trial as newly discovered evidence affecting his credibility at the trial. Such an allegation by the defense ordinarily will not support a motion for a new trial, because new evidence which is “merely cumulative or impeaching” is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial. Id. (footnote omitted). Motions for a new trial based on recanted testimony of a material witness are looked upon with the utmost suspicion. Batsell v. United States, 8 Cir. 1968, 403 F.2d 395, 403, cert. denied, 1969, 393 U.S. 1094, 89 S.Ct. 865, 21 L.Ed.2d 785; Newman v. United States, 5 Cir. 1956, 238 F.2d 861, 862 n. 1. We agree with the lower court’s findings that the circumstances surrounding Ho-man’s recantation renders it particularly suspect. The evidence impeaching Ho-man was overwhelming and fully supports the conclusion that he failed to demonstrate that his trial testimony was false. Accordingly, we find no abuse of discretion in the denial of the motion for a new trial. United States v. Johnson, 1946, 327 U.S. 106, 111, 66 S.Ct. 464, 90 L.Ed. 562;" } ]

[ { "docid": "6905007", "title": "", "text": "W. EUGENE DAVIS, Circuit Judge: Sylvano Sanchez (Sanchez) appeals the district court’s application of the sentencing guidelines in determining Sanchez’s sentence for a firearms violation. We affirm. I. Sanchez pled guilty to a charge of making a false statement in the acquisition of a firearm. The court imposed a 36-month sentence, a three-year term of supervised release, a fine of $1000 and a special assessment of $50. After Sanchez’s arrest on this charge and while he was free on bond he unsuccessfully attempted to purchase a pistol. He then secured the help of another to acquire the firearm. He was also arrested for possession of marijuana and he continued to use a controlled substance, which violated the conditions of his release. Under the sentencing guidelines, Sanchez had a total offense level of 9 with a criminal history category level of V, resulting in a sentencing range of 18 to 24 months. Based on Sanchez’s conduct while on release, the district court departed from the sentencing guidelines and imposed a 36-month sentence. Sanchez lodged a timely appeal from that sentence. II. A. Sanchez first contends that, because he surrendered to government agents after learning of the outstanding warrant for his arrest and he pled guilty, he should have received a two-level reduction in his offense level for acceptance of responsibility. The district court’s determination of whether an accused is entitled to a reduction for acceptance of responsibility is subject to the clearly erroneous standard of review. United States v. Barreto, 871 F.2d 511, 513 (5th Cir.1989). The district court declined to give the two-level reduction because it determined that Sanchez’s conduct while he was on release “mitigate[d] against ... acceptance of responsibility.” This determination was not clearly erroneous. “A guilty plea may provide some evidence of the defendant’s acceptance of responsibility. However, it does not, by itself, entitle a defendant to a reduced sentence_” Sentencing Guidelines § 3E1.1 Application Note 3. Also, the “Background” explanation to § 3E1.1 suggests that a showing of “sincere remorse” by the accused is the underlying rationale for reducing a sentence. The district court had every" } ]

[ { "docid": "23487610", "title": "", "text": "guilty to theft of funds from a self-service stamp vending machine. The defendant provided the authorities with information regarding other postal thefts, but the court declined to reduce his sentence under § 3E1.1 because he had continued to use cocaine after his arrest. The Eleventh Circuit held that the district court “acted well within its discretion in concluding that appellant’s continuing use of cocaine cast doubt on the sincerity of his avowed acceptance of responsibility.” Id. at 1216. The court noted that while a defendant’s continued use of narcotics “does not preclude an adjustment for acceptance of responsibility, it is one indicia that the sentencing judge may consider in assessing whether the adjustment is appropriate.” Id.; see United States v. Davis, 878 F.2d 1299, 1301 (11th Cir.) (continued drug use is inconsistent with acceptance of responsibility), cert. denied, 493 U.S. 941, 110 S.Ct. 341, 107 L.Ed.2d 330 (1989). On the other hand, the Sixth Circuit has held that consideration of a defendant’s post-indictment, pre-sentencing attempted theft charge and positive drug test was inappropriate when determining whether a defendant accepted responsibility for firearms violations. United States v. Morrison, 983 F.2d 730 (6th Cir.1993); see United States v. Moored, 997 F.2d 139, 145 (6th Cir.1993) (holding that a court may only inquire as to the acceptance of responsibility for the offense of conviction, not illegal conduct generally). The defendant in Morrison was indicted for the receipt and possession of a firearm by a felon. He was released on bond and subsequently arrested for attempting to steal a pick-up truck. The defendant was found in constructive possession of a firearm, and he tested positive for a controlled substance. The court held that the district court properly considered Morrison’s possession of a firearm in determining whether he had accepted responsibility, but should not have considered conduct unrelated to the offense of conviction. In framing the issue on the unrelated criminal activity, the court noted: Some might argue that a defendant can recognize and affirm acceptance of responsibility for certain criminal activity while engaging in other criminal activity. On the other hand, it might be" }, { "docid": "23487606", "title": "", "text": "bond awaiting sentencing, the defendant used cocaine and engaged in drug trafficking. The district court found that he was not entitled to a two-level reduction for acceptance of responsibility. In affirming the district court’s sentence, this court held that “[j]ust as it is difficult to credit Jordan with acceptance of responsibility in light of his continued drug dealing, it is also hard to see how his use of cocaine while awaiting sen tencing for dealing in that drug is consistent with acceptance of responsibility for that crime.” Id. at 974. Similarly, in United States v. Panadero, 7 F.3d 691 (7th Cir.1993), the defendant engaged in fraudulent transactions, and while released on bond engaged in bank fraud. The court held that the defendant did not qualify for the reduction because she continued to engage in criminal activity following her arrest. The court did not explicitly rely on the similarity of the crimes in upholding the district court’s refusal to reduce her sentence under § 3E1.1. In United States v. Franklin, 902 F.2d 501, 506 (7th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 274, 112 L.Ed.2d 229 (1990), the defendant pleaded guilty to distribution and possession of cocaine. While out on bond, he continued to deal cocaine and this court affirmed the district court’s refusal to allow the two-level reduction for acceptance of responsibility. 902 F.2d at 506 (“Mann’s conduct while out on bond is opposite the type of conduct expected from someone who was truly remorseful about his crimes”); see also United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990) (the defendant pleaded guilty to attempted possession with intent to distribute cocaine and dealt cocaine after the indictment); United States v. Cooper, 912 F.2d 344, 346 (9th Cir.1990) (charged with bank fraud, defendant engaged in additional fraudulent activity while awaiting sentencing; court held that continued criminal conduct was evidence of lack of sincere remorse). While this court has upheld the refusal to grant a reduction when the defendant engages in criminal activity that is the same or similar to the charges pending against him, no case in this circuit" }, { "docid": "17187749", "title": "", "text": "the district court had exercised its discretion properly in denying the reduction, the Seventh Circuit remarked that: Just as it is difficult to credit Jordan with acceptance of responsibility in light of his continued drug dealing, it is also hard to see how his use of cocaine while awaiting sentencing for dealing in that drug is consistent with acceptance of responsibility for that crime. Id. at 974; see also United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990) (holding that the defendant’s arrest for drug dealing while he was out on bond awaiting sentencing justified the district court’s decision to deny the 3E1.1 credit, even though defendant had pled guilty and expressed remorse and a need for drug treatment); United States v. Scroggins, 880 F.2d 1204, 1215 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990); United States v. Davis, 878 F.2d 1299, 1301 (11th Cir.) (no clear error in district court’s decision to deny award of two-point reduction for acceptance of responsibility based on conclusion that defendant’s continued drug use while out on bond was inconsistent with having accepted responsibility for her criminal conduct), cert. denied, — U.S.-, 110 S.Ct. 341, 107 L.Ed.2d 330 (1989). Similarly, Cooper’s subsequent fraudulent purchase of the car detracts from the credibility of her expressions of remorse for the fraudulent activities of which she was convicted. In the original PSR the probation officer noted that the investigation by Secret Service agents revealed that, although Cooper claimed in her statement that she had terminated all fraudulent behavior once she separated from her husband, in fact she had continued to use fraudulently acquired credit cards for two months after that time. Considered alone this information was insufficient to prevent him from recommending that the district court award Cooper the two-level reduction for acceptance of responsibility, but, viewed together with the subsequently discovered evidence of an even longer period of continued fraudulent activity than Cooper had acknowledged and expressed remorse for, the probation officer revised his estimation of Cooper’s sincerity and withdrew the recommendation in the supplemental PSR. After hearing the" }, { "docid": "17187747", "title": "", "text": "to own up to the fraudulent car purchase. See United States v. Oliveras, 905 F.2d 623, 631 (2d Cir.1990) (distinguishing from Perez cases affirming district courts’ denial of the acceptance-of-responsibility credit which rested upon deference to the sentencing judge’s credibility determination that the defendant had not accepted responsibility for the crimes of which he had been convicted). Although the Ninth Circuit appears not to have previously addressed the issue directly, it is well established in a substantial number of other circuits that a district court may consider continued criminal conduct by a defendant as evidence of a lack of sincere remorse and, accordingly, deny the two-level reduction under 3E1.1, even in the face of a defendant’s assertions to the contrary or agreement to plead guilty. In United States v. Sanchez, 893 F.2d 679 (5th Cir.1990), for example, the Fifth Circuit found that, given the defendant's failure to abide by the conditions of his pre-trial release in attempting to purchase a firearm and continuing to use drugs, the district court was justified in denying the two-level reduction under 3E1.1, despite the defendant’s surrender to police upon learning of the outstanding warrant for his arrest and guilty plea. Observing that “the ‘Background ’ explanation to § 3E1.1 suggests that a showing of ‘sincere remorse’ by the accused is the underlying rationale for reducing a sentence,” it held that the district court “had every reason to conclude that Sanchez’s involvement with firearms and controlled substances demonstrated a lack of remorse to justify [the] reduction.” Id. at 681 (citing United States v. Jordan, 890 F.2d 968 (7th Cir.1989)). In Jordan the district court denied the defendant’s request for the reduction on the basis of his undisputed participation in two separate incidents of drug-related activity (use of cocaine and dealing to minors) during the presentence period. 890 F.2d at 974. It acknowledged Jordan’s plea of guilty and admission of responsibility for the offense of conviction, but nevertheless “was persuaded that ‘this is one of those cases where the old adage actions speak louder than words certainly comes into play.’ ” Id. at 971. Finding that" }, { "docid": "23366360", "title": "", "text": "responsibility adjustment where defendant used cocaine while on release pending sentencing for forgery); United States v. Scroggins, 880 F.2d 1204, 1215-16 (11th Cir.1989), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990) (holding “the district court acted well within its discretion in concluding that appellant’s continuing use of cocaine cast doubt on the sincerity of his avowed acceptance of responsibility” for the underlying postal theft offense). We are persuaded by the decisions of the First, Fifth, Seventh, and Eleventh Circuits, and decline to find that Section 3E1.1 contains any restriction against considering unrelated criminal conduct in denying an acceptance of responsibility reduction. Rather, the guideline permits the district court to consider whether defendant has demonstrated “voluntary termination or withdrawal from criminal conduct or associations,” U.S.S.G. § 3E1.1, Application Note 1(b), and defendant’s conduct “may ... outweigh” the fact that defendant pleaded guilty to the underlying offense. While, as the First Circuit has noted, “[t]he fact that a defendant engages in later, undesirable, behavior does not necessarily prove that he is not sorry for an earlier offense,” such conduct “certainly could shed light on the sincerity of a defendant’s claims of remorse.” United States v. O’Neil, 936 F.2d at 600. We conclude that Guideline § 3E1.1 does not preclude the sentencing judge, in the exercise of his or her discretion, from considering unlawful conduct unrelated to the offense of conviction in determining whether a defendant qualifies for an adjustment for acceptance of responsibility. AFFIRMED. . The Honorable Richard H. Battey, Chief Judge, United States District Court for the District of South Dakota." }, { "docid": "23366359", "title": "", "text": "two-to-one decision, the Sixth Circuit has held: acceptance of responsibility, as contemplated by the United States Sentencing Commission, is “acceptance of responsibility for his offense,” ... not for “illegal conduct” generally. Considering unrelated criminal conduct unfairly penalizes a defendant for a criminal disposition, when true remorse for specific criminal behavior is the issue. United States v. Morrison, 983 F.2d 730, 735 (6th Cir.1993) (citations and footnote omitted; emphasis in original case). All other circuits that have addressed this issue have held that the sentencing court may consider criminal conduct unrelated to the underlying offense in determining whether defendant qualifies for an adjustment for acceptance of responsibility. United States v. McDonald, 22 F.3d 139, 144 (7th Cir.1994) (reviewing cases in various circuits) (affirming denial of acceptance of responsibility where defendant used cocaine while awaiting sentence for’ counterfeiting); United States v. O’Neil, 936 F.2d 599, 600-01 (1st Cir.1991) (upholding denial of acceptance of responsibility where defendant used marijuana after committing mail theft); United States v. Watkins, 911 F.2d 983, 984 (5th Cir.1990) (affirming denial of acceptance of responsibility adjustment where defendant used cocaine while on release pending sentencing for forgery); United States v. Scroggins, 880 F.2d 1204, 1215-16 (11th Cir.1989), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990) (holding “the district court acted well within its discretion in concluding that appellant’s continuing use of cocaine cast doubt on the sincerity of his avowed acceptance of responsibility” for the underlying postal theft offense). We are persuaded by the decisions of the First, Fifth, Seventh, and Eleventh Circuits, and decline to find that Section 3E1.1 contains any restriction against considering unrelated criminal conduct in denying an acceptance of responsibility reduction. Rather, the guideline permits the district court to consider whether defendant has demonstrated “voluntary termination or withdrawal from criminal conduct or associations,” U.S.S.G. § 3E1.1, Application Note 1(b), and defendant’s conduct “may ... outweigh” the fact that defendant pleaded guilty to the underlying offense. While, as the First Circuit has noted, “[t]he fact that a defendant engages in later, undesirable, behavior does not necessarily prove that he is not sorry" }, { "docid": "23487609", "title": "", "text": "600. In United States v. Watkins, 911 F.2d 983 (5th Cir.1990), the defendant pleaded guilty to possessing treasury checks stolen from the mail. While on release pending sentencing, the defendant used cocaine. The district court found that the defendant’s statements concerning his guilt were sincere, but stated that his continued unlawful behavior was inconsistent with the acceptance of responsibility. The Fifth Circuit acknowledged that there was no direct basis for this interpretation in the Guidelines themselves, but commented that the Application Notes are phrased in general terms and do not specify that the defendant need only refrain from criminal conduct associated with the offense of conviction in order to qualify for the reduction. Id. at 985; see also United States v. Sanchez, 893 F.2d 679, 681 (5th Cir.1990) (upholding refusal to reduce sentence when defendant charged with firearms violation attempted to acquire firearms and used controlled substance while on release). In United States v. Scroggins, 880 F.2d 1204 (11th Cir.1989), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990), the defendant pleaded guilty to theft of funds from a self-service stamp vending machine. The defendant provided the authorities with information regarding other postal thefts, but the court declined to reduce his sentence under § 3E1.1 because he had continued to use cocaine after his arrest. The Eleventh Circuit held that the district court “acted well within its discretion in concluding that appellant’s continuing use of cocaine cast doubt on the sincerity of his avowed acceptance of responsibility.” Id. at 1216. The court noted that while a defendant’s continued use of narcotics “does not preclude an adjustment for acceptance of responsibility, it is one indicia that the sentencing judge may consider in assessing whether the adjustment is appropriate.” Id.; see United States v. Davis, 878 F.2d 1299, 1301 (11th Cir.) (continued drug use is inconsistent with acceptance of responsibility), cert. denied, 493 U.S. 941, 110 S.Ct. 341, 107 L.Ed.2d 330 (1989). On the other hand, the Sixth Circuit has held that consideration of a defendant’s post-indictment, pre-sentencing attempted theft charge and positive drug test was inappropriate when determining" }, { "docid": "23487605", "title": "", "text": "a defendant qualifies for the reduction a court may properly consider if the defendant “truthfully admitt[ed] the conduct comprising the offense(s) of conviction ...” and consider whether the defendant voluntarily has terminated or withdrawn from criminal conduct or associations. U.S.S.G. § 3E1.1, comment, (n.l(a) and (b)). The Guidelines do not directly address whether unrelated criminal activity engaged in by the defendant between the information or indictment and trial or sentencing is a sufficient basis for the district court to deny a downward departure for acceptance of responsibility. In reviewing the language of the Guidelines and corresponding application notes, however, we conclude that a sentencing judge is not prohibited from considering a defendant’s conduct, and specifically may consider criminal conduct or associations engaged in while a defendant is free on bond awaiting trial or sentencing. Our cases in which the reduction was denied generally involve similar criminal conduct to the charged offense. In United States v. Jordan, 890 F.2d 968 (7th Cir.1989), the defendant pleaded guilty to possession with intent to distribute cocaine. While free on bond awaiting sentencing, the defendant used cocaine and engaged in drug trafficking. The district court found that he was not entitled to a two-level reduction for acceptance of responsibility. In affirming the district court’s sentence, this court held that “[j]ust as it is difficult to credit Jordan with acceptance of responsibility in light of his continued drug dealing, it is also hard to see how his use of cocaine while awaiting sen tencing for dealing in that drug is consistent with acceptance of responsibility for that crime.” Id. at 974. Similarly, in United States v. Panadero, 7 F.3d 691 (7th Cir.1993), the defendant engaged in fraudulent transactions, and while released on bond engaged in bank fraud. The court held that the defendant did not qualify for the reduction because she continued to engage in criminal activity following her arrest. The court did not explicitly rely on the similarity of the crimes in upholding the district court’s refusal to reduce her sentence under § 3E1.1. In United States v. Franklin, 902 F.2d 501, 506 (7th Cir.)," }, { "docid": "5479949", "title": "", "text": "criminal conduct.” A court’s determination of acceptance of responsibility is a factual question subject to the clearly erroneous standard of review. United States v. Barreto, 871 F.2d 511, 513 (5th Cir.1989). The district court determined that Watkins was not entitled to this two point reduction for the sole reason that Watkins had used cocaine while on release pending sentencing. While noting that Watkins’ statements concerning his culpability for the convicted offense were sincere, the district court explained that Watkins’ “continuing or continued unlawful behavior while on release” were inconsistent with an acceptance of responsibility. Watkins argues that the district court’s interpretation of the acceptance of responsibility criterion was overly broad and unprecedented. Watkins is correct that there is no direct basis for this interpretation in the Guidelines themselves or in case law. However, it does not follow that this interpretation is necessarily incorrect. Several cases support a sentencing judge’s refusal to grant a reduction for acceptance of responsibility when the defendant used drugs while on pretrial release, at least when the underlying offense was related to, or motivated by, drug use. See United States v. Scroggins, 880 F.2d 1204, 1215 (11th Cir.1989) (underlying offense of postal theft motivated by drug use); United States v. Davis, 878 F.2d 1299, 1301 (11th Cir.1989) (underlying drug offense); United States v. Weidner, 703 F.Supp. 1350, 1354-55 (N.D.Ind.1988) (underlying drug offense). More analogous to the instant case is United States v. Sanchez, 893 F.2d 679, 681 (5th Cir.1990), a case in which this Court affirmed the district court’s refusal to grant a reduction for acceptance of responsibility. While on release for a firearms violation, the defendant in Sanchez again attempted to acquire a firearm and used controlled substances. The district court concluded that the defendant’s conduct demonstrated a lack of remorse and a reduction was not justified. On appeal, this Court found that this determination was not clearly erroneous. Id. However, this Court did not explain the significance of the fact that part of the conduct which demonstrated a lack of remorse was similar to the offense of conviction. The Sentencing Guidelines indicate that this" }, { "docid": "2405800", "title": "", "text": "defendant. United States v. Wallace, 904 F.2d 603, 604 (11th Cir.1990). Shores points to his admission of involvement in the crime. His admission, however, does not necessarily amount to an “affirmative acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3E1.1. Moreover, Shores continued to blame his involvement on others. Shores does not point out anything else in the record indicating his acceptance of responsibility. ’ “The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility_ [Her] determination ... is entitled to great deference on review and should not be disturbed unless it is without foundation.” U.S.S.G. § 3E1.1, comment, (n. 5); United States v. Campbell, 888 F.2d 76, 78 (11th Cir.1989), cert. denied, 494 U.S. 1032, 110 S.Ct. 1484, 108 L.Ed.2d 620 (1990). The district court’s finding that Shores failed to accept responsibility is not clearly erroneous. V. CONCLUSION There being no error in the court’s admission of similar act evidence, Shores conviction is AFFIRMED. We find no error in the court’s assessment of a three-level adjustment for possession of a dangerous weapon, nor do we find error in the court’s refusal to credit Shores a two-level reduction for acceptance of responsibility. The court’s two-level enhancement for obstruction, however, was inappropriate. Accordingly, we VACATE Shores's sentence and REMAND for resentencing. AFFIRMED in part; VACATED and REMANDED in part. . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. . This amendment became effective after Shores's sentencing. Subsequent clarifying amendments to the guidelines, however, may be referred to in interpreting a guideliné provision. United States v. Scroggins, 880 F.2d 1204 (11th Cir.1989), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990); United States v. Howard, 923 F.2d 1500, 1503-05 (11th Cir.1991). RONEY, Senior Circuit Judge, dissenting in part: I concur in all of the court’s opinion except the decision that the concealed possession of the toy gun requires sentence enhancement under U.S.S.G. § 2B3.1(b)(2)(C) (Nov.1989). The" }, { "docid": "5479950", "title": "", "text": "to, or motivated by, drug use. See United States v. Scroggins, 880 F.2d 1204, 1215 (11th Cir.1989) (underlying offense of postal theft motivated by drug use); United States v. Davis, 878 F.2d 1299, 1301 (11th Cir.1989) (underlying drug offense); United States v. Weidner, 703 F.Supp. 1350, 1354-55 (N.D.Ind.1988) (underlying drug offense). More analogous to the instant case is United States v. Sanchez, 893 F.2d 679, 681 (5th Cir.1990), a case in which this Court affirmed the district court’s refusal to grant a reduction for acceptance of responsibility. While on release for a firearms violation, the defendant in Sanchez again attempted to acquire a firearm and used controlled substances. The district court concluded that the defendant’s conduct demonstrated a lack of remorse and a reduction was not justified. On appeal, this Court found that this determination was not clearly erroneous. Id. However, this Court did not explain the significance of the fact that part of the conduct which demonstrated a lack of remorse was similar to the offense of conviction. The Sentencing Guidelines indicate that this Court should give the sentencing judge wide discretion: The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation. Sentencing Guidelines § 3E1.1, Application Note 5. Among the appropriate factors specified in the Guidelines for determining if a defendant qualifies for the acceptance of responsibility reduction is the defendant’s “voluntary termination or withdrawal from criminal conduct or association.” Sentencing Guidelines § 3E1.1, Application Note 1(a). We note that this factor is phrased in general terms and does not specify that the defendant need only refrain from criminal conduct associated with the offense of conviction in order to qualify for the reduction. Thus, we find that the district court's interpretation that acceptance of responsibility includes refraining from any violations of the law is not without foundation. III. CONCLUSION The Sentencing Guidelines provide that the sentencing judge is entitled to great deference in determining if a defendant" }, { "docid": "5479948", "title": "", "text": "JOHNSON, Circuit Judge: I. FACTS AND PROCEDURAL HISTORY Kenneth Ray Watkins (“Watkins”) was arrested after he negotiated four social security checks made out to four different payees, none of whom gave Watkins permission to negotiate their checks. He was charged with two counts of passing forged treasury checks in violation of 18 U.S.C. § 510(a)(2) and one count of possessing treasury checks stolen from the mail in violation of 18 U.S.C. § 1708. Pursuant to a plea bargain agreement, Watkins entered a plea of guilty to the violation of 18 U.S.C. § 1708. After denying Watkins’ request to award a two-level reduction for acceptance of responsibility under § 3E1.1 of the Sentencing Guidelines, the district court sentenced Watkins to a term of imprisonment of eight months, the maximum limit of the guideline range. Watkins here appeals his sentence. II. DISCUSSION Section 3E1.1 of the Sentencing Guidelines provides that a defendant may be entitled to a two point reduction in his sentence if he “clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” A court’s determination of acceptance of responsibility is a factual question subject to the clearly erroneous standard of review. United States v. Barreto, 871 F.2d 511, 513 (5th Cir.1989). The district court determined that Watkins was not entitled to this two point reduction for the sole reason that Watkins had used cocaine while on release pending sentencing. While noting that Watkins’ statements concerning his culpability for the convicted offense were sincere, the district court explained that Watkins’ “continuing or continued unlawful behavior while on release” were inconsistent with an acceptance of responsibility. Watkins argues that the district court’s interpretation of the acceptance of responsibility criterion was overly broad and unprecedented. Watkins is correct that there is no direct basis for this interpretation in the Guidelines themselves or in case law. However, it does not follow that this interpretation is necessarily incorrect. Several cases support a sentencing judge’s refusal to grant a reduction for acceptance of responsibility when the defendant used drugs while on pretrial release, at least when the underlying offense was related" }, { "docid": "17187748", "title": "", "text": "reduction under 3E1.1, despite the defendant’s surrender to police upon learning of the outstanding warrant for his arrest and guilty plea. Observing that “the ‘Background ’ explanation to § 3E1.1 suggests that a showing of ‘sincere remorse’ by the accused is the underlying rationale for reducing a sentence,” it held that the district court “had every reason to conclude that Sanchez’s involvement with firearms and controlled substances demonstrated a lack of remorse to justify [the] reduction.” Id. at 681 (citing United States v. Jordan, 890 F.2d 968 (7th Cir.1989)). In Jordan the district court denied the defendant’s request for the reduction on the basis of his undisputed participation in two separate incidents of drug-related activity (use of cocaine and dealing to minors) during the presentence period. 890 F.2d at 974. It acknowledged Jordan’s plea of guilty and admission of responsibility for the offense of conviction, but nevertheless “was persuaded that ‘this is one of those cases where the old adage actions speak louder than words certainly comes into play.’ ” Id. at 971. Finding that the district court had exercised its discretion properly in denying the reduction, the Seventh Circuit remarked that: Just as it is difficult to credit Jordan with acceptance of responsibility in light of his continued drug dealing, it is also hard to see how his use of cocaine while awaiting sentencing for dealing in that drug is consistent with acceptance of responsibility for that crime. Id. at 974; see also United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990) (holding that the defendant’s arrest for drug dealing while he was out on bond awaiting sentencing justified the district court’s decision to deny the 3E1.1 credit, even though defendant had pled guilty and expressed remorse and a need for drug treatment); United States v. Scroggins, 880 F.2d 1204, 1215 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990); United States v. Davis, 878 F.2d 1299, 1301 (11th Cir.) (no clear error in district court’s decision to deny award of two-point reduction for acceptance of responsibility based on conclusion that defendant’s continued" }, { "docid": "23487608", "title": "", "text": "addresses the situation in which the intervening criminal activity is not the same or similar to the crime charged. Other circuits have spoken on this issue but are not in agreement. The First, Fifth, and Eleventh Circuits hold that a defendant is not entitled to a reduction if he or she has used a controlled substance while on release pending sentencing. The Sixth Circuit disagrees. In United States v. O’Neil, 936 F.2d 599 (1st Cir.1991), the defendant pleaded guilty to charges of breaking into a post office and stealing mail. While on bail awaiting sentencing, the defendant used marijuana and broke into a building. The district court refused to reduce his sentence under § 3E1.1, specifically pointing to his use of marijuana. On appeal, the defendant argued that the court could not require him to accept responsibility for uncharged conduct. Id. at 599. The First Circuit held that the district court properly considered defendant’s later conduct “for the light that conduct shed on the authenticity of appellant’s claimed remorse” for the charged offense. Id. at 600. In United States v. Watkins, 911 F.2d 983 (5th Cir.1990), the defendant pleaded guilty to possessing treasury checks stolen from the mail. While on release pending sentencing, the defendant used cocaine. The district court found that the defendant’s statements concerning his guilt were sincere, but stated that his continued unlawful behavior was inconsistent with the acceptance of responsibility. The Fifth Circuit acknowledged that there was no direct basis for this interpretation in the Guidelines themselves, but commented that the Application Notes are phrased in general terms and do not specify that the defendant need only refrain from criminal conduct associated with the offense of conviction in order to qualify for the reduction. Id. at 985; see also United States v. Sanchez, 893 F.2d 679, 681 (5th Cir.1990) (upholding refusal to reduce sentence when defendant charged with firearms violation attempted to acquire firearms and used controlled substance while on release). In United States v. Scroggins, 880 F.2d 1204 (11th Cir.1989), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990), the defendant pleaded" }, { "docid": "23487607", "title": "", "text": "cert. denied, 498 U.S. 906, 111 S.Ct. 274, 112 L.Ed.2d 229 (1990), the defendant pleaded guilty to distribution and possession of cocaine. While out on bond, he continued to deal cocaine and this court affirmed the district court’s refusal to allow the two-level reduction for acceptance of responsibility. 902 F.2d at 506 (“Mann’s conduct while out on bond is opposite the type of conduct expected from someone who was truly remorseful about his crimes”); see also United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990) (the defendant pleaded guilty to attempted possession with intent to distribute cocaine and dealt cocaine after the indictment); United States v. Cooper, 912 F.2d 344, 346 (9th Cir.1990) (charged with bank fraud, defendant engaged in additional fraudulent activity while awaiting sentencing; court held that continued criminal conduct was evidence of lack of sincere remorse). While this court has upheld the refusal to grant a reduction when the defendant engages in criminal activity that is the same or similar to the charges pending against him, no case in this circuit addresses the situation in which the intervening criminal activity is not the same or similar to the crime charged. Other circuits have spoken on this issue but are not in agreement. The First, Fifth, and Eleventh Circuits hold that a defendant is not entitled to a reduction if he or she has used a controlled substance while on release pending sentencing. The Sixth Circuit disagrees. In United States v. O’Neil, 936 F.2d 599 (1st Cir.1991), the defendant pleaded guilty to charges of breaking into a post office and stealing mail. While on bail awaiting sentencing, the defendant used marijuana and broke into a building. The district court refused to reduce his sentence under § 3E1.1, specifically pointing to his use of marijuana. On appeal, the defendant argued that the court could not require him to accept responsibility for uncharged conduct. Id. at 599. The First Circuit held that the district court properly considered defendant’s later conduct “for the light that conduct shed on the authenticity of appellant’s claimed remorse” for the charged offense. Id. at" }, { "docid": "22851308", "title": "", "text": "stolen from the mail, used cocaine while on release pending sentencing. The district court refused to grant the defendant an acceptance of responsibility reduction solely because of the drug use. See id. at 984. The Fifth Circuit, noting that “there is no direct basis for this interpretation [of the acceptance of responsibility criterion] in the Guidelines themselves or in case law,” yet upheld the district court’s ruling. Id. It concluded that the district court’s view was not clearly erroneous because Application Note 1(a) “is phrased in general terms and does not specify that the defendant need only refrain from criminal conduct associated with the offense of conviction in order to qualify for the reduction.” Id. at 985; see also United States v. O’Neil, 936 F.2d 599, 600-01 (1st Cir.1991) (seeming to accept proposition that any criminal conduct shows lack of remorse and thus lack of acceptance of responsibility for crime charged). In contrast to Watkins (and O’Neil), we consider “voluntary termination or withdrawal from criminal conduct” to refer to that conduct which is related to the underlying offense. Such conduct may be of the same type as the underlying offense, as in Lassiter, Snyder, Reed, Jessup, Olvera, Cooper, Wivell, and Jordan; or may be the motivating force behind the underlying offense, as in Scroggins; or may be related to actions toward government witnesses concerning the underlying offense, as in Barrett; or may involve an otherwise strong link with the underlying offense, as in Davis and Jordan. We are persuaded by the rationale that an individual may be truly repentant for one crime yet commit other unrelated crimes. The opposing rationale was adopted in the dissent to the instant case, which reads, in part: “The issue appears to be whether the questioned conduct ‘is inconsistent’ with defendant’s statement that I realize I have done what I should not have done— engage in illegal conduct.” We would end the sentence, “... — be a felon in possession of a firearm.” We hold that acceptance of responsibility, as contemplated by the United States Sentencing Commission, is “acceptance of responsibility for his offense, ”" }, { "docid": "22851306", "title": "", "text": "substance, smuggled a controlled substance into the prison where he was awaiting sentencing), cert. denied, — U.S. -, 112 S.Ct. 3011, 120 L.Ed.2d 885 (1992); United States v. Cooper, 912 F.2d 344, 345-48 (9th Cir.1990) (acceptance of responsibility reduction denied where defendant, charged with fraud, became involved in additional fraudulent activity); United States v. Wivell, 893 F.2d 156, 158-59 (8th Cir.1990) (acceptance of responsibility reduction denied where defendant, charged with attempted possession of cocaine with intent to distribute, dealt in cocaine while he was on bond awaiting disposition of the case). Courts have also upheld district court denials of an acceptance of responsibility reduction which look to criminal conduct related to, but not of the same type, as the underlying offense. See, e.g., United States v. Barrett, 890 F.2d 855, 868-69 (6th Cir.1989) (acceptance of responsibility denied where defendant threatened government informant and witness); United States v. Davis, 878 F.2d 1299, 1300-01 (11th Cir.) (acceptance of responsibility reduction denied where defendant, charged with conspiracy to possess with intent to distribute cocaine, continued to use drugs while out on bond), cert. denied, 493 U.S. 941, 110 S.Ct. 341, 107 L.Ed.2d 330 (1989); United States v. Scroggins, 880 F.2d 1204, 1215 (11th Cir.1989) (acceptance of responsibility reduction denied where defendant, charged with postal theft, “had not turned away from the lifestyle that had motivated his offense of conviction,” viz., cocaine use), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990). And courts will uphold denials of an acceptance of responsibility reduction where the pre-sentencing criminal conduct is both of the same type and otherwise related to the underlying offense. See, e.g., United States v. Jordan, 890 F.2d 968, 973-74 (7th Cir.1989) (acceptance of responsibility denied where defendant, charged with possession with intent to distribute cocaine, participated in two separate instances of drug dealing, and used cocaine, while awaiting sentencing). At least one case is directly on point. In United States v. Watkins, 911 F.2d 983 (5th Cir.1990), the Fifth Circuit reviewed a case where the defendant, having pled guilty to passing forged treasury checks and to possessing treasury checks" }, { "docid": "14821815", "title": "", "text": "then stood charged with or generally with respect to other legal requirements. And then we have, conduct of some kind which the Court does not propose to assess, that results in his being charged with, by state authorities, a burglary in a fraternal lodge facility in which, it is alleged at least, a large number of bottles of liquor were taken. Now, that is significant evidence on the question of what his mental state is in the view of the Court. I just simply cannot persuade myself that it is more likely than not on all of the[ ] evidence that this defendant genuinely regrets what he did that resulted in his conviction of an offense under federal law and that he is truly sorry for that. App. 67-69. We can find nothing unlawful about a court’s looking to a defendant’s later conduct in order to help the court decide whether the defendant is truly sorry for the crimes he is charged with. The fact that a defendant engages in later, undesirable, behavior does not necessarily prove that he is not sorry for an earlier offense; but, it certainly could shed light on the sincerity of a defendant’s claims of remorse. We are not surprised that the courts, so far, have uniformly held that: a district court may consider continued criminal conduct by a defendant as evidence of a lack of sincere remorse and, accordingly, deny the two-level reduction under 3E1.1, even in the face of a defendant’s assertions to the contrary or agreement to plead guilty. United States v. Cooper, 912 F.2d 344, 346 (9th Cir.1990); accord United States v. Piper, 918 F.2d 839, 840-41 (9th Cir.1990); United States v. Watkins, 911 F.2d 983, 984-85 (5th Cir.1990); United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990); United States v. Jordan, 890 F.2d 968, 974 (7th Cir.1989); United States v. Scroggins, 880 F.2d 1204, 1216 (11th Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990). And, we agree with this statement of the law. In our view the district court here could reasonably conclude that" }, { "docid": "22851307", "title": "", "text": "while out on bond), cert. denied, 493 U.S. 941, 110 S.Ct. 341, 107 L.Ed.2d 330 (1989); United States v. Scroggins, 880 F.2d 1204, 1215 (11th Cir.1989) (acceptance of responsibility reduction denied where defendant, charged with postal theft, “had not turned away from the lifestyle that had motivated his offense of conviction,” viz., cocaine use), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990). And courts will uphold denials of an acceptance of responsibility reduction where the pre-sentencing criminal conduct is both of the same type and otherwise related to the underlying offense. See, e.g., United States v. Jordan, 890 F.2d 968, 973-74 (7th Cir.1989) (acceptance of responsibility denied where defendant, charged with possession with intent to distribute cocaine, participated in two separate instances of drug dealing, and used cocaine, while awaiting sentencing). At least one case is directly on point. In United States v. Watkins, 911 F.2d 983 (5th Cir.1990), the Fifth Circuit reviewed a case where the defendant, having pled guilty to passing forged treasury checks and to possessing treasury checks stolen from the mail, used cocaine while on release pending sentencing. The district court refused to grant the defendant an acceptance of responsibility reduction solely because of the drug use. See id. at 984. The Fifth Circuit, noting that “there is no direct basis for this interpretation [of the acceptance of responsibility criterion] in the Guidelines themselves or in case law,” yet upheld the district court’s ruling. Id. It concluded that the district court’s view was not clearly erroneous because Application Note 1(a) “is phrased in general terms and does not specify that the defendant need only refrain from criminal conduct associated with the offense of conviction in order to qualify for the reduction.” Id. at 985; see also United States v. O’Neil, 936 F.2d 599, 600-01 (1st Cir.1991) (seeming to accept proposition that any criminal conduct shows lack of remorse and thus lack of acceptance of responsibility for crime charged). In contrast to Watkins (and O’Neil), we consider “voluntary termination or withdrawal from criminal conduct” to refer to that conduct which is related to" }, { "docid": "14821816", "title": "", "text": "necessarily prove that he is not sorry for an earlier offense; but, it certainly could shed light on the sincerity of a defendant’s claims of remorse. We are not surprised that the courts, so far, have uniformly held that: a district court may consider continued criminal conduct by a defendant as evidence of a lack of sincere remorse and, accordingly, deny the two-level reduction under 3E1.1, even in the face of a defendant’s assertions to the contrary or agreement to plead guilty. United States v. Cooper, 912 F.2d 344, 346 (9th Cir.1990); accord United States v. Piper, 918 F.2d 839, 840-41 (9th Cir.1990); United States v. Watkins, 911 F.2d 983, 984-85 (5th Cir.1990); United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990); United States v. Jordan, 890 F.2d 968, 974 (7th Cir.1989); United States v. Scroggins, 880 F.2d 1204, 1216 (11th Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990). And, we agree with this statement of the law. In our view the district court here could reasonably conclude that the appellant’s later conduct (such as his use of marijuana in violation of bail conditions explicitly forbidding drug use) showed that the defendant lacked “authentic remorse” for the post-office crimes. See U.S.S.G. § 3E1.1, comment, (n.5) (The “acceptance of responsibility ... determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation.”); see also United States v. Royer, 895 F.2d 28, 29 (1st Cir.1990); United States v. Mata-Grullon, 887 F.2d 23, 24 (1st Cir.1989) (per curiam). Appellant also suggests that a court’s use of a defendant’s other, potentially criminal, conduct in determining the authenticity of remorse may violate the Fifth Amendment’s prohibition against self-incrimination. We do not see how this is so. As we have said, O’Neil’s problem is not that he would not say that he was sorry for other crimes but that he committed them. Of course, the sentencing court had to conclude that O’Neil, in fact, did engage in that conduct; and, O’Neil correctly believed that the court would so find" } ]

[ { "docid": "14323667", "title": "", "text": "future. The court awarded costs and attorney’s fees against appellant. On April 15, 1985, appellant served a motion for a new trial. That motion was denied as untimely on May 10, 1985, because it was not filed within ten days of the entry of judgment as is required by Rule 59(b), Fed.R.Civ.P. An order fixing the amount of attorney’s fees was entered by the court on June 3, 1985, and appellant filed his notice of appeal on June 7, 1985. The only issues which are properly before this Court on appeal are the issues involving the denial of the motion for a new trial on the ground that it was untimely filed and the amount of attorney’s fees. The appeal was timely filed with respect to these two orders which were entered on May 10, and June 3, respectively. Appellant’s notice of appeal cannot cover the original judgment of the court cancelling the common-law liens and enjoining taxpayer from filing any such liens against federal officials in the future because the notice of appeal, filed on June 7, 1985, was filed more than sixty days after March 29, 1985, the date the district court granted judgment in favor of the government and the employees. The failure to file a timely notice of appeal is jurisdictional and cannot be waived. Pryor v. U.S. Postal Service, 769 F.2d 281, 284 (5th Cir.1985). We recognize that the notice of appeal was timely filed to appeal from the order of May 10, denying the new trial on the ground that the motion for the new trial was untimely filed. We deny the appeal from this order on the merits since it is obvious on the face of the record that the motion for a new trial was untimely as not having been filed within the requisite ten day period. Fed.R.Civ.P. 59(b). It follows that appellant cannot avail himself of the provision of Rule 4(a)(4)(iv), Fed.R.App.P., because his motion for a new trial also was invalid as not timely filed. Thus, the sixty day period began to run at the time of the court’s original" } ]

[ { "docid": "13820941", "title": "", "text": "BENNETT, Circuit Judge. This is an appeal of a judgment of the United States Claims Court, 1 Cl.Ct. 241 (1982), denying appellant Sofarelli damages and/or an equitable adjustment under the “Changes” clause of a government construction contract. The government (appellee) asserts that this court lacks jurisdiction to hear this appeal, as appellant did not file a notice of appeal within 60 days after entry of the judgment by the Claims Court, as required by Fed.R.App.P. 4(a)(1) (Fed. Cir.R. 10(a) and Cl.Ct.Rule 72). We agree and therefore dismiss the appeal as untimely- Fed.R.App.P. 4(a)(1) requires, inter alia, that when the United States is a party, a notice of appeal must be filed with the trial court within 60 days from the date of entry of the judgment. It is well settled that this requirement is “mandatory and jurisdictional.” See, e.g., Browder v. Director, Dept, of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521; reh’g denied, 434 U.S. 1089, 98 S.Ct. 1286, 55 L.Ed.2d 795 (1978); Hernandez-Rivera v. Immigration & Naturalization Service, 630 F.2d 1352, 1354 (9th Cir.1980); Gribble v. Harris, 625 F.2d 1173, 1174 (5th Cir.1980). The Claims Court entered judgment in this case on November 18, 1982. Appellant thus had until January 17, 1983, to file its notice of appeal. Appellant filed its notice of appeal on January 19, 1983, two days after the expiration of the appeal period. No motion for an extension of time accompanied the notice of appeal, nor, as provided for in Fed.R.App.P. 4(a)(5), was one filed within 30 days after the expiration date in the court below. Appellant asserts that the notice of appeal was timely filed, as Fed.R.App.P. 26(c) extended the 60-day period by 3 days. Rule 26(c), however, has no application to the 60-day period specified in Rule 4(a)(1), as the latter rule states that the appeal time starts from the entry of the judgment, not from service of the notice of judgment. See Lashley v. Ford Motor Co., 518 F.2d 749, 750 (5th Cir.1975). Appellant’s notice of appeal was clearly untimely. Appellant contends that even if" }, { "docid": "3162255", "title": "", "text": "These witnesses further testified that irrespective of defendants’ conduct, the spinal cord damage more likely than not occurred during the car accident, and it was only a question of time before this damage, manifested itself in permanent paralysis. The jury returned a verdict for the defendants, and judgment was entered by the district court on April 22, 1983. Haney’s notice of appeal was docketed on May 24, 1983. JURISDICTION Before we reach the merits of Haney’s contentions on appeal, we first must resolve the jurisdiction issue. Our inquiry in this regard is informed by an examination of Fed.R.App.P. 3 and 4, and authorities construing these rules. A notice of appeal is timely filed if filed with the district court within thirty (30) days following the date of entry of judgment. Fed.R.App.P. 4(a)(1). The law is clear that the timeliness of an appeal is “mandatory and jurisdictional.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (quoting Browder v. Director, Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560 (1978)); Campbell v. Wainwright, 726 F.2d 702, 703 (11th Cir. 1984); Glass v. Seaboard Coast Line Railroad Co., 714 F.2d 1107, 1109 (11th Cir.1983); Fed.R.App.P. 3 advisory committee note. While it is equally clear that actual receipt of the notice of appeal by the district court within the Rule 4 period, even though not formally filed within that period, suffices to confer appellate jurisdiction, see Hatchell v. Heckler, 708 F.2d 578, 579 (11th Cir.1983) (citing Parissi v. Telechron, 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955) (construing 28 U.S.C. § 2107)); Aldabe v. Aldabe, 616 F.2d 1089, 1091 (9th Cir.1980), simply depositing the notice in the mail is not the same as filing it. Sanchez v. Board of Regents, 625 F.2d 521, 522 (5th Cir.1980), appeal dismissed, 633 F.2d 1210 (5th Cir.1981). Applying these principles to this case, there is little doubt that Haney’s actual notice of appeal was untimely filed, regardless of when it was mailed, since it apparently was received by the district court beyond the Rule" }, { "docid": "22949551", "title": "", "text": "its complaint to allege the new theories. On January 5, 1984, the district court entered a minute order denying BMC’s motions “[f]or [the] reasons set forth in defendant’s [sic] response to plaintiff’s motions for new trial and to amend complaint.” Copies of the minute order were mailed to counsel, and plaintiff’s counsel received his copy on January 9, 1984. Defendants’ motion for attorneys’ fees was argued January 23, 1984. On March 21, the district court entered an order finding that defendants were entitled to an award of $8,000. On April 20, BMC filed its notice of appeal. Defendants timely cross-appealed from the denial in part of their fee request. II. Timeliness of BMC’s Appeal on the Merits Before this court, defendants moved to dismiss BMC’s appeal of the merits on the ground that BMC’s notice of appeal was filed more than thirty days after the district court’s denial of BMC’s post-judgment motions. A panel of this court denied the motion leaving to us the consideration whether the January 5 order should be deemed a judgment or order within the meaning of Fed.R.Civ.P. 58. Fed.R.App.P. 4(a) requires that a notice of appeal in a civil case be filed within thirty days after the date of entry of the judgment or order appealed from. A timely motion for a new trial under Fed.R. Civ.P. 59, however, stays the time for appeal. Fed.R.App.P. 4(a)(4). A new notice of appeal must then be filed within thirty days, measured from the entry of the order disposing of the post-judgment motion. Id. These time periods for appeal are jurisdictional and cannot be waived by the parties. Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). It is the date of “entry” of a judgment or order that starts the time period for noticing an appeal. A judgment or order is not entered within the meaning of Fed.R.App.P. 4(a) unless it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure. Calhoun v. United States, 647 F.2d 6, 8 (9th Cir.1981);" }, { "docid": "23662625", "title": "", "text": "could still apply for an extension from the Appeals Council and, if granted, refile his complaint in the district court. The district court’s order was filed on May 28, 1985. Vernon filed notice of appeal on August 26, 1985. II. APPELLATE JURISDICTION The government argues that this court lacks jurisdiction to hear this appeal. It asserts that Vernon filed notice of appeal 28 days after the expiration of the 60-day period allowed by Fed.R.App.P. 4(a)(1). We disagree. The filing of a timely notice of appeal is “ ‘mandatory and jurisdictional.’ ” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960)); Beaudry Motor Co. v. Abko Properties, Inc., 780 F.2d 751, 754 (9th Cir.), cert. denied, — U.S. —, 107 S.Ct. 100, 93 L.Ed.2d 51 (1986). The period for filing a notice of appeal begins upon “entry” of the judgment or order appealed from. Fed.R.App.P. 4(a)(1). A judgment or order is not entered within the meaning of Rule 4(a) unless it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure. Calhoun v. United States, 647 F.2d 6, 8 (9th Cir.1981); Fed.R.App.P. 4(a)(6). The requirements of these rules must be “mechanically applied.” United States v. Indrelunas, 411 U.S. 216, 222, 93 S.Ct. 1562, 1565, 36 L.Ed.2d 202 (1973) (per curiam). Absent compliance with these requirements, “a party will not ordinarily be found to have exceeded any of the time periods set forth in Fed.R.App.P. 4(a).” Calhoun, 647 F.2d at 8. In this case, the record does not reveal compliance with Fed.R.Civ.P. 58, which requires that “[ejvery judgment shall be set forth on a separate document.” A sheet containing the judgment, usually prepared by the clerk, must be “distinct from any opinion or memorandum.” Fed.R.Civ.P. 58 advisory committee note. Here, although the district court issued an order, which was entered in the civil docket and mailed to the parties, there was no separate document setting forth the judgment of the" }, { "docid": "6727593", "title": "", "text": "date of entry of the judgment or order from which the party is appealing. Fed.R. App.P. 4(a)(1). The Supreme Court has emphasized that the timely filing of a notice of appeal is “ ‘mandatory and jurisdictional.’ ” Houston v. Lack, 487 U.S. 266, 282, 108 S.Ct. 2379, 2388, 101 L.Ed.2d 245 (1988) (Sealia, J., dissenting); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 61, 103 S.Ct. 400, 401, 403, 74 L.Ed.2d 225 (1982); Browder v. Director, Dep’t of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978); United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 285, 4 L.Ed.2d 259 (1960); see Torres v. Oakland Scavenger Co., 487 U.S. 312, 315, 108 S.Ct. 2405, 2408, 101 L.Ed.2d 285 (1988). As the Seventh Circuit has reiterated recently, this proposition “means what it says: if an appellant does not file his notice of appeal on time, we cannot hear his appeal.” Varhol v. National R.R. Passenger Corp., 909 F.2d 1557, 1561 (7th Cir.1990) (per curiam) (en banc). According to the appellate Rules, a timely motion filed under Fed.Rs.Civ.P. 50(b) or 59 may toll the running of time for a notice of appeal; an untimely filed post-trial motion, however, will not suffice. See Browder, 434 U.S. at 264-65, 98 S.Ct. at 560-61; Kraus v. Consolidated Rail Corp., 899 F.2d 1360, 1362 (3d Cir.1990); Butler v. Coral Volkswagen, Inc., 804 F.2d 612, 617 (11th Cir.1986); Fed.R.App.P. 4(a)(4). In order to be considered timely, post-trial motions pursuant to Rules 50(b) or 59 must be served within ten (10) days after entry of the district court’s judgment. Fed.R.Civ.P. 50(b); Fed.R.Civ.P. 59(b). Further, Fed.R.Civ.P. 6(b) unequivocally states that a district court “may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent and under the conditions stated in them.” Fed. R.Civ.P. 6(b) (emphasis added). The Rules at issue in this case — Rules 50(b) (motion for JNOV) and 59(a), (b) (motion for new trial) — do not provide any mechanism for extending" }, { "docid": "22949552", "title": "", "text": "or order within the meaning of Fed.R.Civ.P. 58. Fed.R.App.P. 4(a) requires that a notice of appeal in a civil case be filed within thirty days after the date of entry of the judgment or order appealed from. A timely motion for a new trial under Fed.R. Civ.P. 59, however, stays the time for appeal. Fed.R.App.P. 4(a)(4). A new notice of appeal must then be filed within thirty days, measured from the entry of the order disposing of the post-judgment motion. Id. These time periods for appeal are jurisdictional and cannot be waived by the parties. Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). It is the date of “entry” of a judgment or order that starts the time period for noticing an appeal. A judgment or order is not entered within the meaning of Fed.R.App.P. 4(a) unless it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure. Calhoun v. United States, 647 F.2d 6, 8 (9th Cir.1981); Fed.R.App.P. 4(a)(6). Rule 58 requires that every judgment be set forth on a separate document, and Rule 79(a) details the civil docketing procedure to be followed by the district court clerk when entering the judgment. BMC makes several arguments that its notice of appeal filed 110 days after the January 5 order is timely. First, BMC contends that the minute order denying its post-trial motions is not a judgment or order within the meaning of Fed.R.Civ.P. 58. Second, it argues that the minute order did not meet the entry requirements of Fed.R.Civ.P. 79(a). Last, BMC argues that the judgment on the merits was not final absent compliance with Fed.R.Civ.P. 54(b) while the motion for attorneys’ fees was pending. The earlier panel rejected the latter arguments and left to us the resolution of the first. Nevertheless, the motion panel’s entire order is subject to reconsideration. See In re Commercial Western Finance Corp., 761 F.2d 1329, 1332 n. 6 (9th Cir.1985); United States v. Humphries, 636 F.2d 1172, 1174 n. 2 (9th Cir.1980), cert. denied, 451 U.S." }, { "docid": "23527530", "title": "", "text": "motion for relief from judgment under Fed. R.Civ.P. 60(b). He equates good cause, grounds to prevent dismissal, with excusable neglect, grounds for relief from an order under the terms of Fed.R.Civ.P. 60(b)(1). Appeal from Dismissal Order. Initially, we raise sua sponte lack of jurisdiction due to untimely filing of the notice of appeal. See Browder v. Director, Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978) (Fed.R.App.P. 4(a) time limit is mandatory and jurisdictional). Fox’s appeal from the dismissal order is untimely. Under Fed.R.App.P. 4(a), he had 30 days from its entry on May 21, 1979, to file a notice of appeal. The period expired on June 20, 1979, see Fed.R.App.P. 26(a), and the notice of appeal was not filed until August 7, 1979. Fox’s motion for reconsideration was not made under any Rule of Civil Procedure that tolls running of the appeal time period. See Fed.R.App.P. 4(a). Even if we construe it as such, it was not timely filed. All the motions under the rules specified in Fed.R. App.P. 4(a) must be made within 10 days from entry of judgment. See Fed.R.Civ.P. 50(b), 52(b), 59(b) & (e). Fox’s motion was filed on June 22, 1979, 32 days after entry of judgment. The district court may not enlarge the time for making one of these motions, Fed.R.Civ.P. 6(b), and we may not enlarge the time for filing a notice of appeal. Fed.R.App.P. 26(b). Appeal from Refusal to Reconsider. Even if we treat Fox’s motion to reconsider as a motion for postjudgment relief under Fed.R.Civ.P. 60(b), under controlling case law he cannot succeed. Rule 60 states a motion under subdivision (b) “does not affect the finality of a judgment or suspend its operation.” The motion does not toll the time for filing a notice of appeal. Cline v. Hoogland, 518 F.2d 776, 778 (8th Cir.1975); Conerly v. Flower, 410 F.2d 941, 943-44 (8th Cir.1969). An appeal from a Rule 60(b) decision does not bring the original judgment up for review, but only the decision on the request for relief from the judgment under Rule 60(b)." }, { "docid": "22298742", "title": "", "text": "1984 and discovered the matter had been dismissed. On July 5, 1984, the district court vacated and reentered the judgment. A notice of appeal was filed July 13, 1984 from the judgment granting the Village’s motion to dismiss for failure to state a claim. This court ordered the parties to address the question of timeliness of the appeal. The Village of Lombard did not take that opportunity to argue that the appeal was untimely, nor has it ever challenged the action of the district court granting Rule 60(b)(6) relief. The appellants have submitted essentially the same memorandum as they submitted to the district court in support of their Rule 60(b)(6) motion. We must consider the timeliness of the appeal even though it was not raised by the parties. In re Bassak, 705 F.2d 234, 236 (7th Cir.1983). The time limitations within which an appeal may be taken are mandatory and a condition to the exercise of our jurisdiction. See Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978); Marane, Inc. v. McDonald’s Corp., 755 F.2d 106 (7th Cir.1985); United States v. Roberts, 749 F.2d 404 (7th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 1770, 84 L.Ed.2d 830 (1985); Sanchez v. Board of Regents, 625 F.2d 521, 522 n. 1 (5th Cir.1980). If the district court abused its discretion in extending the appeal period by vacating and reentering judgment, we are without jurisdiction. Rodgers v. Watt, 722 F.2d 456 (9th Cir.1983) (en banc); Kramer v. American Postal Workers Union, AFL-CIO, 556 F.2d 929, 931 (9th Cir.1977) (per curiam); In re Morrow, 502 F.2d 520, 523 (5th Cir.1974). But see Mizell v. Attorney General, 586 F.2d 942, 944-45 n. 2 (2d Cir.1978) (treating the issue as waived by the parties), cert. denied, 440 U.S. 967, 99 S.Ct. 1519, 59 L.Ed.2d 783 (1979). A notice of appeal 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____” Fed.R. App.P. 4(a)(1). The district court may extend the time for" }, { "docid": "21886781", "title": "", "text": "the Court’s order compelling discovery pursuant to Rule 37(b) of the Federal Rules of Civil Procedure.” See Record at 191. On December 18,1979, appellee so moved; specifically, it sought to dismiss the complaint and to require appellant to pay the expenses occasioned by his disobedience. Appellant answered the motion on January 16, 1980, and finally provided appellee with the executed power of attorney on January 25, 1980. By order dated February 6, 1980, however, the district court granted appel-lee’s motion, thereby dismissing appellant’s complaint with prejudice. Appellant filed, on February 15, 1980, a motion for relief under Fed.R.Civ.P. 60, which was denied on March 12, 1980. On April 11, 1980 appellant noticed an appeal purporting to embrace both the February 6 final order of dismissal and the March 12 denial of post-judgment relief. II. Appellate Jurisdiction The Federal Rules of Appellate Procedure provide: 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 . . . shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from .... Fed.R.App.P. 4(a)(1), 28 U.S.C.A. (Cum. Supp.1980). This rule amplifies the parallel statutory requirement found in 28 U.S.C. § 2107 (1976) and has been held consistently to be both mandatory and jurisdictional, Browder v. Director, Dep’t of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978); Gulf-Tampa Drydock Co. v. Vessel Virginia Trader, 435 F.2d 150, 151 (5th Cir. 1970); Lamb v. Shasta Oil Co., 149 F.2d 729, 730 (5th Cir. 1945). Cf. United States v. Robinson, 361 U.S. 220, 228-29, 80 S.Ct. 282, 287-88, 4 L.Ed.2d 259 (1960). As such, the thirty-day period cannot “be extended regardless of excuse,” id. at 229, 80 S.Ct. at 288 (footnote omitted). Accordingly, we are without jurisdiction to review the district court’s February 6, 1980 dismissal since appeal was noticed therefrom on April 11, 1980. In this case, however, appellant has perfected a timely appeal from" }, { "docid": "587151", "title": "", "text": "5, 1979. It is not disputed that we have jurisdiction to review the latter three of the four rulings listed in Republic’s notice of appeal, including the district court’s quashing order. National maintains, however, that the order quashing the time extension renders untimely Republic’s appeal from the summary judgment, thus precluding review by this court. National’s position rests upon Fed.R.App.P. 4(a), which prescribes a 30-day period from the entry of judgment in which to file a notice of appeal in civil cases between private parties. The requirement that a notice of appeal be timely filed is characterized as mandatory and jurisdictional. Browder v. Director, Dept. of Corrections of Illinois, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). This means that, ordinarily, appellate jurisdiction does not extend to otherwise final and appealable orders and judgments entered more than 30 days prior to the filing of an appeal. Under the circumstances of this case, however, we do not perceive our jurisdiction to be so limited. Upon a showing of excusable neglect, the statutorily-prescribed time for filing a notice of appeal may be extended by the district court for a period not to exceed an additional 30 days. Fed.R.App.P. 4(a). Such an extension may be obtained before or after the initial time limit has expired. Id. A request for an extension before that time has elapsed may be made by ex parte motion. Benoist v. Brotherhood of Loco motive Engineers, 555 F.2d 671, 672 (8th Cir. 1977). Thereafter, the request “shall be made by motion with such notice as the court shall deem appropriate.” Fed.R. App.P. 4(a). The grant or denial of an extension of time for appeal is an appealable order reviewed under the abuse of discretion standard. Matter of Estate of Butler’s Tire & Battery Co., Inc., 592 F.2d 1028, 1032 (9th Cir. 1979); Gooch v. Skelly Oil Co., 493 F.2d 366 (10th Cir.), cert. denied, 419 U.S. 997, 95 S.Ct. 311, 42 L.Ed.2d 270 (1974); see generally, 9 Moore’s Federal Practice 1 204.13[4], at 4-107, 4-108 (2d ed. 1980). In this case, Republic moved ex parte for an" }, { "docid": "21886782", "title": "", "text": ". shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from .... Fed.R.App.P. 4(a)(1), 28 U.S.C.A. (Cum. Supp.1980). This rule amplifies the parallel statutory requirement found in 28 U.S.C. § 2107 (1976) and has been held consistently to be both mandatory and jurisdictional, Browder v. Director, Dep’t of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978); Gulf-Tampa Drydock Co. v. Vessel Virginia Trader, 435 F.2d 150, 151 (5th Cir. 1970); Lamb v. Shasta Oil Co., 149 F.2d 729, 730 (5th Cir. 1945). Cf. United States v. Robinson, 361 U.S. 220, 228-29, 80 S.Ct. 282, 287-88, 4 L.Ed.2d 259 (1960). As such, the thirty-day period cannot “be extended regardless of excuse,” id. at 229, 80 S.Ct. at 288 (footnote omitted). Accordingly, we are without jurisdiction to review the district court’s February 6, 1980 dismissal since appeal was noticed therefrom on April 11, 1980. In this case, however, appellant has perfected a timely appeal from the district court’s denial of his motion under Fed.R. Civ.P. 60. The authorities indicate, however, that appellate review of the denial of such a motion “must be narrower in scope than review of the underlying order of dismissal so as not to vitiate the requirement of a timely appeal.” Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382, 386 (5th Cir. 1978); see Browder, supra, 434 U.S. at 263 & n.7, 98 S.Ct. at 560 & n.7, Burnside v. Eastern Airlines, Inc., 519 F.2d 1127 (5th Cir. 1975). Specifically, our review is limited to whether the district court abused its discretion in denying the Rule 60 motion. Browder, supra, 434 U.S. at 263 n.7, 98 S.Ct. at 560 n.7; Burnside, supra. To that question, we now turn. III. Abuse of Discretion The thrust of appellant’s argument is that the district court abused its discretion in not granting postjudgment relief because appellant’s actions were in good faith and because appellant did not intentionally disregard the order compelling discovery. On these facts, we do not hesitate" }, { "docid": "22434908", "title": "", "text": "within 30 days after the date of entry of the order or judgment appealed from. The time limit for filing a notice of appeal is “ ‘mandatory and jurisdictional.’ ” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (quoting Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978)); see In re Cosmopolitan Aviation Corp., 763 F.2d 507, 514 (2d Cir.), cert. denied, — U.S. -, 106 S.Ct. 593, 88 L.Ed.2d 573 (1985); Stirling v. Chemical Bank, 511 F.2d 1030, 1031 (2d Cir.1975); cf. United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 285, 4 L.Ed.2d 259 (1960) (construing 10-day limitation imposed by Fed.R.Crim.P. 45(b)). Matarese urges that we should deem his notice of appeal to have been timely filed with respect to the 1981 Judgment as a matter of equity, on the ground that, prior to noticing the jurisdictional flaw, we held Matarese’s notice of appeal and motions for some 20 months and then granted him a certificate of probable cause, assigned him counsel, and accepted his briefs and appendix on this appeal. He argues that had we dismissed his appeal promptly, he could equally promptly have pursued other avenues of relief in the district court. Even were we persuaded that our failure to notice sua sponte the jurisdictional flaw at an earlier time somehow excused Matarese’s nearly three-year tardiness in filing his notice of appeal, we would have no authority to take jurisdiction as Matarese suggests. The power of the federal courts to extend the time limits on the invocation of appellate jurisdiction is severely circumscribed. The district court may extend the 30-day appeal period for up to thirty days for good cause shown. Fed.R.App.P. 4(a)(5), but may not extend it further, Moore v. Nelson, 611 F.2d 434, 436 n. 4 (2d Cir.1979); In re Orbitec Corp., 520 F.2d 358, 361 (2d Cir.1975). This Court has no power whatever to extend the deadline for filing the notice of appeal. Fed.R. App.P. 26(b); see United States v." }, { "docid": "15815889", "title": "", "text": "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). . The January 30 order of dismissal was docketed on the same date. The time period of rule 4(a) runs from the date the judgment or order is docketed and not the date of filing. Barksdale v. Blackburn, 670 F.2d 22, 23-24 (5th Cir.), cert. denied, 457 U.S. 1109, 102 S.Ct. 2912, 73 L.Ed.2d 1319 (1982). . The Godwins assert that since Hudspeth was not decided until twenty days after the FSLIC’s final determination, it is unfair to force them to proceed under the APA. The district court disagreed and noted that the statutory basis for an exhaustion requirement was present at all times. See 12 C.F.R. § 564.1(d)(4) (1985) (setting forth procedures for reconsideration of an FSLIC insurance determination); 5 U.S.C. § 704 (final agency action subject to judicial review). The court also noted that judicial review under the APA was still available to the Godwins. For the reasons we explain infra, we do not reach the merits of the Godwins' argument or express a view on the district court’s reasoning. . As we recently stated, \"Section 6 of rule 60 is regarded as a catch-all provision which allows a court to exercise broad equitable powers in reevaluating its decisions. Menier v. United States, 405 F.2d 245, 248 (5th Cir.1968). The overall goal of rule 60(b)(6) is to accomplish justice. Williams v. New Orleans Public Service, Inc., 728 F.2d 730, 733 (5th Cir.1984).\" Huff, 799 F.2d at 1091 n. 7. . The filing of a rule 60(b) motion does not suspend the notice of appeal time period. Huff, 799 F.2d at 1090; Browder, 434 U.S. at 263 n. 7, 98 S.Ct. at 560 n. 7. . The Godwins' April 4 notice of appeal was filed more than 60 days after the January 30 order of dismissal and thus was untimely as an appeal of that order. . Accordingly, we express no opinion as to whether the district court properly dismissed the" }, { "docid": "22773764", "title": "", "text": "dated June 14, 1988. II. Notice of appeal in a civil suit is required to be filed within thirty days of the entry of judgment. Fed.R.App.P. 4(a)(1). This limit is “ ‘mandatory and jurisdictional.’ ” Shah v. Hutto, 722 F.2d 1167, 1167 (4th Cir.1983) (en banc), quoting Browder v. Director, Dep’t. of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). Failure to comply requires dismissal of the appeal. Id. at 1168. A district court may, however, extend the time for filing a notice of appeal, upon a showing of excusable neglect or good cause, so long as a motion for extension of time is filed no later than thirty days after expiration of the original appeal time. Fed.R.App.P. 4(a)(5). In interpreting the interplay of Fed.R. App.P. 4(a)(1) and Fed.R.App.P. 4(a)(5), this circuit in Shah v. Hutto, 722 F.2d 1167 (4th Cir.1983) (en banc), held that “[a] bare notice of appeal should not be construed as a motion for extension of time, where no request for additional time is manifest.” Id. at 1169. See also Myers v. Stephenson, 748 F.2d 202, 204 (4th Cir.1984). The rule of Shah should be self-evident: an extension of time under Fed.R.App.P. 4(a)(5) may be granted for “excusable neglect or good cause,” but a bare notice of appeal states no basis on which relief under the express terms of the Rule might be extended. Further, Rule 4(a)(5) requires that a motion for an extension of time be filed; a bare notice of appeal is not a motion. Other circuits have interpreted the rule similarly. Wyzik v. Employee Benefit Plan of Crane Co., 663 F.2d 348, 348 (1st Cir.1981); Campos v. LeFevre, 825 F.2d 671, 675-76 (2d Cir.1987); Herman v. Guardian Life Insurance Co. of America, 762 F.2d 288, 289-90 (3d Cir.1985); Briggs v. Lucas, 678 F.2d 612, 613 (5th Cir.1982); Pryor v. Marshall, 711 F.2d 63, 64-65 (6th Cir.1983); United States ex rel. Leonard v. O’Leary, 788 F.2d 1238, 1240 (7th Cir.1986); Campbell v. White, 721 F.2d 644, 646 (8th Cir.1983); Malone v. Avenenti, 850 F.2d 569, 572 (9th Cir.1988); Mayfield" }, { "docid": "16659408", "title": "", "text": "any ruling upon a motion for summary judgment, and that procedure was not followed. Plaintiff is in error. The earlier motion was denied May 13, 1983, well before the ruling on the summary judgment motion. On September 12th, Marañe filed its notice of appeal “from the order of summary judgment ... entered in this action on the 12th day of August, 1982 [sic].” This appeal, and our possible jurisdiction, arise from this notice of appeal. II. The time limits for filing a notice of appeal are specified by Rule 4, Fed.R. App.P., and 28 U.S.C. § 2107. Rule 4(a)(1) and section 2107 require that, except where the government is a party, the notice of appeal be filed within thirty days after the date of entry of the judgment appealed from. “This 30-day time limit is ‘mandatory and jurisdictional.’ ” Browder v. Director, Dept, of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (I960)). Rule 4(a)(4) provides that if certain post-judgment motions are timely filed in the district court, the time for appeal runs from the entry of the order disposing of the motion (except in the case of an order granting a new trial, which is not appealable). Among the motions listed in Rule 4(a)(4) are motions under Rule 59(e), Fed.R.Civ.P., to alter or amend the judgment. If Marane’s “Motion to Reconsider” was a timely Rule 59(e) motion, then the period for filing an appeal did not start to run until August 12, 1983, the day after entry of the order denying the motion. (The order was entered in the docket August 11th, though it was dated August 12th.) Marañe filed its notice of appeal on September 12th. This was timely because September 10,1983, the final day of the thirty-day period, was a Saturday. Fed.R.Civ.P. 6(a). Thus if Marane’s motion was timely, we would have jurisdiction over the appeal, and could reach the substantive issues. Rule 59(e) requires that motions to alter or amend the judgment be served not" }, { "docid": "22303006", "title": "", "text": "case doctrine in light of the earlier state court ruling on the identical ground. The district court’s order dismissing the amended complaint was entered on April 2, 1985. The Bank subsequently informed Red-field that it was not interested in pursuing the litigation on appeal. Redfield did attempt to perfect an appeal, but his notice of appeal was not filed in the district court until May 7, 1985, exceeding by five days the thirty-day period allowed for appeal under Fed.R.App.P. 4(a)(1). On May 17, 1985, Redfield filed a motion in the district court to extend the time for appeal and to clarify the record. On January 24, 1986, the district court granted Redfield’s motion to extend the time for filing a notice of appeal until May 7, 1985, finding pursuant to Fed.R.App.P. 4(a)(5) that Redfield had demonstrated “excusable neglect” for his failure to file within the original thirty-day period. Defendant Continental appeals from this order. II Before analyzing whether the district court properly dismissed the amended complaint with prejudice, we must first determine whether plaintiff Redfield’s notice of appeal was timely filed. The timely filing of a notice of appeal is mandatory and jurisdictional. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225; Browder v. Director, Illinois Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521; United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259; Wort v. Vierling, 778 F.2d 1233, 1234 (7th Cir.1985). Fed.R.App.P. 4(a)(1) requires that a notice of appeal in a civil case, other than one to which the United States or an officer or agency thereof is a party, be filed with the clerk of the district court within 30 days after the entry of the judgment or order appealed from. Because the order dismissing the amended complaint in this case was entered on April 2, 1985, the plaintiff should have filed his notice of appeal no later than May 2, 1985. In fact, plaintiff’s notice was not filed until May 7, 1985. Upon being notified of his" }, { "docid": "14290183", "title": "", "text": "be taken, see Blanton, 697 F.2d at 148; Ellison, 557 F.2d at 132, an appeal from a Rule 33 motion denial is subject to the requirement that the appeal be taken within ten days from the docketing of the district court’s order. See Fed.R.App.P. 4(b). Absent an appeal within this time, or an extension from the district court for filing the notice of appeal, id., this court, being without authority to extend the time for filing a notice of appeal, Fed.R.App.P. 26(b), will lack the jurisdiction to hear the appeal. Cf. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264-65, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978) (time limit for taking a civil appeal contained in Fed.R. App.P. 4(a) is “mandatory and jurisdictional”). In the instant case, the district court denied Hatfield’s new trial on May 19, 1986, and this order was entered on the criminal docket on May 20, 1986. Therefore, by operation of Fed.R.App.P. 4(b), Hatfield had until Friday, May 30, 1986 to file a notice of appeal from this order. The notice of appeal was not filed, however, until Monday, June 2. Since May 30, 1986 was neither a Saturday, Sunday, or legal holiday, see Fed.R.App.P. 26(a), and nothing exists in the record to indicate that Hatfield was granted an extension of time by the district court to file the notice of appeal, we hold that Hatfield’s appeal in No. 86-5629 was untimely, and that we lack jurisdiction to hear this appeal. In light of the foregoing, the judgment of conviction against Hatfield is AFFIRMED, and his appeal from the district court’s denial of his Rule 33 motion is DISMISSED for want of jurisdiction. . The \"wallet” containing the lock picks was seized contemporaneously with Sheriff Bowe’s taking of the portable police scanner, rendering problematic whether the wallet was actually seized as part of the search incident to arrest. Nevertheless, this item, which was merely laying in the area between the van’s seats, would have inevitably been discovered as part of the valid search of Hatfield’s vehicle. Consequently, suppression of this item was" }, { "docid": "10898329", "title": "", "text": "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 extend the time for filing a cross-appeal. Herndon v. Piper Aircraft Corp., Unpublished No. 81-1916 (10th Cir. filed October 5, 1981); Lashley v. Ford Motor Co., 518 F.2d 749, 750 (5th Cir.1975). Defendants also contend that the fourteen-day requirement is not jurisdictional. The filing of a timely notice of the initial appeal is undeniably jurisdictional. Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). However, the circuits appear divided on whether the failure to file a timely cross -appeal deprives the appellate court of jurisdiction. Compare Martin v. Hamil, 608 F.2d 725, 731 (7th Cir.1979) (failure to file cross-appeal divests court of jurisdiction); Richland Knox Mutual Insurance Co. v. Kallen, 376 F.2d 360, 364 (6th Cir.1967) (no jurisdiction over late cross-appeal) with Bryant v. Technical Research Co., 654 F.2d 1337, 1341 (9th Cir.1981) (cross-appeal not jurisdictional prerequisite once initial appeal filed); Scott v. University of Delaware, 601 F.2d 76, 83 (3d Cir.), cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 189 (1979) (cross-appeal" }, { "docid": "14290182", "title": "", "text": "148 (6th Cir.1983) (per curiam); United States v. Lee, 428 F.2d 917, 923 (6th Cir.1970), cert. denied, 404 U.S. 1017, 92 S.Ct. 679, 30 L.Ed.2d 665 (1972). Under Rule 33, although the district court may not grant a new trial while an appeal is pending without a remand, see Fed.R. Crim.P. 33, the trial court may deny such a motion. Cronic, 466 U.S. at 667 n. 42, 104 S.Ct. at 2051 n. 42; Government of Virgin Islands v. Lima, 774 F.2d 1245, 1247 n. 1 (3d Cir.1985); Blanton, 697 F.2d at 148; Lee, 428 F.2d at 923; Ashe v. United States, 288 F.2d 725, 733 (6th Cir.1961). Such a denial is an appealable order, and an immediate appeal taken from the denial will be consolidated with a pending appeal taken from the judgment of conviction. Blanton, 697 F.2d at 148; United States v. Ellison, 557 F.2d 128, 132 (7th Cir.), cert, denied, 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 450 (1977). Nevertheless, by being a distinct appealable order from which a separate appeal must be taken, see Blanton, 697 F.2d at 148; Ellison, 557 F.2d at 132, an appeal from a Rule 33 motion denial is subject to the requirement that the appeal be taken within ten days from the docketing of the district court’s order. See Fed.R.App.P. 4(b). Absent an appeal within this time, or an extension from the district court for filing the notice of appeal, id., this court, being without authority to extend the time for filing a notice of appeal, Fed.R.App.P. 26(b), will lack the jurisdiction to hear the appeal. Cf. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264-65, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978) (time limit for taking a civil appeal contained in Fed.R. App.P. 4(a) is “mandatory and jurisdictional”). In the instant case, the district court denied Hatfield’s new trial on May 19, 1986, and this order was entered on the criminal docket on May 20, 1986. Therefore, by operation of Fed.R.App.P. 4(b), Hatfield had until Friday, May 30, 1986 to file a notice of appeal from" }, { "docid": "23216044", "title": "", "text": "Secretary’s motion for summary judgment. On October 18, 1979, i the appellant filed a “Motion for Rehearing” (new trial), asking the district court to set aside its judgment and upon reconsideration to deny the summary judgment and remand the case to the Secretary for a new hearing. On February 5, 1980, the district court denied the appellant’s motion, and the appellant filed notice of her appeal on March 31. In civil cases in which the United States or an officer thereof is a party, notice of appeal must be filed within sixty days of the date of entry of the judgment appealed from. Fed.R.App.P. 4(a)(1). The delay period for appeal is “mandatory and jurisdictional.” Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521, rehearing denied, 434 U.S. 1089, 98 S.Ct. 1286, 55 L.Ed.2d 795 (1978); Edwards v. Joyner, 566 F.2d 960, 961 (5th Cir. 1978). It is, however, tolled by the timely filing of a motion pursuant to Rule 52(b) (to amend or make additional findings of fact and to amend the judgment accordingly), or to Rule 59 (for a new trial or to alter or amend the judgment) of the Federal Rules of Civil Procedure, and it commences anew from the denial of such motion. Fed.R.App.P. 4(a)(4). As a general rule, the untimely filing of such motions will not toll the running of the delay period for appeal. Browder v. Director, Illinois Department of Corrections, 434 U.S. at 264-65, 98 S.Ct. at 561; Martin v. Wainwright, 469 F.2d 1072, 1073 (5th Cir. 1972), cert denied, 411 U.S. 909, 93 S.Ct. 1538,36 L.Ed.2d 199 (1973). However, an exception to this rule has been recognized allowing an appeals court to assume jurisdiction of an untimely appeal when there is a showing of “unique circumstances” that would render it unfair to dismiss the appeal. Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 217, 83 S.Ct. 283, 285, 9 L.Ed.2d 261 (1962); Chipser v. Kohlmeyer & Co., 600 F.2d 1061, 1063 (5th Cir. 1979). See Eady v. Foerder, 381 F.2d" } ]

[ { "docid": "23389845", "title": "", "text": "the approximately 4,000 pending actions not embraced by the present order likely include actions that, as of January 17, 1991, were overlooked, in trial or already at least partially tried but not yet statistically closed because, inter alia, claims against one or more defendants were stayed under the Bankruptcy Code. . The signatories to this letter are Judges Walter J. Gex, III (S.D.Miss.), Thomas D. Lambros (N.D.Ohio), Alan H. Nevas (D.Conn.), Richard A. Schell (E.D.Tx.), Charles Schwartz, Jr. (E.D.La.), Charles R. Weiner (E.D.Pa.), Charles R. Wolle (S.D.Iowa) and Rya W. Zobel (D.Mass.). Additionally, Judge Jack B. Weinstein (E.D.N.Y.) has contacted the Panel staff and requested that he also be considered a signatory to the letter. . In re Asbestos and Asbestos Insulation Material Products Liability Litigation, 431 F.Supp. 906 (J.P.M.L.1977); In re Asbestos Products Liability Litigation (No. II), MDL-416 (J.P.M.L. March 13, 1980) (unpublished order); In re Asbestos School Products Liability Litigation, 606 F.Supp. 713 (J.P.M.L.1985); In re Ship Asbestos Products Liability Litigation, MDL-676 (J.P.M.L. Feb. 4, 1986) (unpublished order); and In re Leon Blair Asbestos Products Liability Litigation, MDL-702 (J.P.M.L. Feb. 6, 1987) (unpublished order). . The Committee also observed that, in the interest of centralizing asbestos claims to the greatest extent possible, the Panel's authority \"could be expanded to allow the Panel to transfer actions for trial as well as for pretrial proceedings.\" Asbestos Committee Report, supra, at 31. . There appears to be some confusion among the parties concerning the interaction of the provisions of the Bankruptcy Code and § 1407. Transfer under § 1407 of an action containing claims against a defendant in bankruptcy has no effect on the automatic stay provisions of the Bankruptcy Code (11 U.S.C. § 362). Claims that have been stayed in the transferor court remain stayed in the transferee court. The Panel, however, has never considered the pendency of such stayed claims in an action to be an impediment to transfer of the action. 28 U.S.C. § 1407(a) authorizes the Panel to transfer only \"civil actions” and not claims. The complex multidistrict litigations before the Panel have often included actions brought" } ]

[ { "docid": "7794928", "title": "", "text": "916. Faced with an unmanageable Complaint, the court issued an order that would have enabled Appellants’ claims to go forward in a form in which settlement or trial of meritorious claims would have been possible. Counsel failed to comply with this order, defied Local Rules, and neglected to respond to motions filed by opposing counsel. The record indicates that counsel’s behavior was extreme, “of a deliberate rather than inadvertent nature,” Figueroa Ruiz, 896 F.2d at 648, and could “reasonably be construed as an indication of ‘plaintiffs’ lack of interest in vindicating whatever rights they might have had.’ ”. Id. (citing Zavala Santiago v. Gonzalez Rivera, 553 F.2d 710, 712 (1st Cir.1977)). In these circumstances, we can find no abuse of discretion in the district court’s dismissal of Appellants’ Complaint with prejudice. The judgment of the district court is hereby AFFIRMED. . MML Orders 3 and 4 place limits on joinder and require complaints to indicate, to the extent possible, \"the dates of alleged exposure,” \"the names of plaintiffs' employers and the dates of employment where such exposure has occurred.” MML Order 3 at VIII(2). MML Orders 3 and 4 are applicable to all asbestos cases filed in the District of Massachusetts \"except as otherwise directed by the Court upon motion and for cause shown by the party seeking to have [the Orders] declared inapplicable.” MML Orders 3 and 4 at II. . In re: Asbestos Products Liability Litigation, 771 F.Supp. 415 (J.P.M.L.1991), the MDL Panel issued an order transferring all pending asbestos-related personal injury and wrongful death cases filed in federal courts to the District Court for the Eastern District of Pennsylvania, assigning them to Judge Charles R. Weiner for coordinated pretrial proceedings. Asbestos-related cases filed in federal courts after this order was issued may be certified for transfer by the MDL Panel pursuant to 28 U.S.C. § 1407 and in accordance with the Rules of Procedure of the Judicial Panel on Multidistrict Litigation, 147 F.R.D. 589 (J.P.M.L.1993). At the time of the show-cause hearing, Appellants' case was subject to a conditional transfer order issued by the MDL Panel. ." }, { "docid": "22747549", "title": "", "text": "“The most objectionable aspects of asbestos litigation can be briefly summarized: dockets in both federal and state courts continue to grow; long delays are routine; trials are too long; the same issues are litigated over and over; transaction costs exceed the victims’ recovery by nearly two to one; exhaustion of assets threatens and distorts the process; and future claimants may lose altogether.” Report of The Judicial Conference Ad Hoc Committee on Asbestos Litigation 2-3 (Mar. 1991). Real reform, the report concluded, required federal legislation creating a national asbestos dispute-resolution scheme. See id., at 3, 27-35; see also id., at 42 (dissenting statement of Hogan, J.) (agreeing that “a national solution is the only answer” and suggesting “passage by Congress of an administrative claims procedure similar to the Black Lung legislation”). As recommended by the Ad Hoc Committee, the Judicial Conference of the United States urged Congress to act. See Report of the Proceedings of the Judicial Conference of the United States 33 (Mar. 12, 1991). To this date, no congressional response has emerged. In the face of legislative inaction, the federal courts — lacking authority to replace state tort systems with a national toxic tort compensation regime — endeavored to work with the procedural tools available to improve management of federal asbestos litigation. Eight federal judges, experienced in the superintendence of asbestos cases, urged the Judicial Panel on Multidistrict Litigation (MDL Panel), to consolidate in a single district all asbestos complaints then pending in federal courts. Accepting the recommendation, the MDL Panel transferred all asbestos cases then filed, but not yet on trial in federal courts to a single district, the United States District Court for the Eastern District of Pennsylvania; pursuant to the transfer order, the collected cases were consolidated for pretrial proceedings before Judge Weiner. See In re Asbestos Products Liability Litigation (No. VI), 771 F. Supp. 415, 422-424 (JPML 1991). The order aggregated pending cases only; no authority resides in the MDL Panel to license for consolidated proceedings claims not yet filed. B After the consolidation, attorneys for plaintiffs and defendants formed separate steering committees and began" }, { "docid": "23219877", "title": "", "text": "national solution. A document containing their tentative conclusions was signed by Chief Judge Thomas D. Lambros of the Northern District of Ohio and Chief Judge Robert M. Parker of the Eastern District of Texas. In re National Asbestos Litigation (1990). The following United States District Judges in conference reviewed and approved the terms of this Order: Walter J. Gex, III, Southern District of Mississippi; Alan H. Nevas, District of Connecticut; Richard A. Schell, Eastern District of Texas; Charles Schwartz, Jr., Eastern District of Louisiana; Charles P. Sifton, Eastern District of New York; Jack B. Weinstein, Eastern District of New York; Charles R. Wolle, Southern District of Iowa; and Rya W. Zobel, District of Massachusetts. Judge Charles R. Weiner, Southern District of Pennsylvania, later took a leading role in this groups’ discussions and Judge Wolle acted as chief liaison with state judges. While the specifics of the August Order were not executed, this initiative led to further steps on the national and state levels, including national meetings of state trial judges. This intense level of informal trial-judge cooperation on a statewide and national level is not typical of the American judicial systems. The Judicial Panel on Multidistrict Litigation recently heard arguments on whether to consolidate all federal asbestos cases for pretrial purposes (MDL action); this similarly reflects dissatisfaction with efforts to handle asbestos cases on an individual basis. See In re Asbestos Prods. Liab. Litig., (No. VI) (Docket No. 875, Jan. 17, 1991) (Jud.Pan. on MDL). Transfer through the Multidistrict Panel of all asbestos cases for pretrial purposes was denied five times between 1977 and 1987. See Judicial Conference Asbestos Report at 22. At this stage of mature asbestos mass tort litigation there is a danger that MDL action might serve only to delay further ultimate resolution of many cases. Especially in states with efficient pretrial and trial management schemes in place, the disruption and sheer number of cases would generate initial confusion and a period of adjustment, slowing the flow of funds to the injured. This is so because the MDL panel may in theory only consolidate the cases for" }, { "docid": "4370277", "title": "", "text": "counsel, recognize steering committees of lawyers, limit and manage discovery, etc. to minimize expense to all litigants and to provide judicial efficiency. See, e.g., Manual for Complex Litigation (Second) §§ 33.22, 33.25 (1985) (suggesting mechanisms to organize counsel and discovery in mass tort litigation). The ultimate goal is that the district court to which pretrial proceedings in multi-district litigation have been transferred “promote the just and efficient conduct of such actions.” See 28 U.S.C. § 1407(a) (1988). The authority for consolidating cases on the order of the judicial panel on multi-district litigation, however, is merely procedural and does not expand the jurisdiction of the district court to which the cases are transferred. While § 1407 provides a procedure for transferring cases filed in different districts to a single district court for pretrial proceedings, nowhere does it expand the jurisdiction of either the transferor or the transferee court. As in any other case, a transferee court’s jurisdiction in multi-district litigation is limited to cases and controversies between persons who are properly parties to the cases transferred, and any attempt without service of process to reach others who are unrelated is beyond the court’s power. See Hartland v. Alaska Airlines, 544 F.2d 992, 1002 (9th Cir.1976) (ordering a district court overseeing MDL proceedings to return contributions obtained from non-party claimants as a condition of approving settlements). Paragraphs 2 and 3 of Order No. 7 require plaintiff’s counsel to contribute $1,000 and 0.5% of the value of settlement or verdict “in all cases presently filed or later filed in these proceedings.” While these paragraphs apparently limit their scope to parties to the litigation before the court, paragraph 4 applies the obligations of paragraphs 2 and 3 “to actions venued in state courts, untransferred federal cases, and unfiled claims in which any MDL defendant is a party or payor.” The order thus compels contributions from plaintiffs in state or federal litigation who are not before the court and by claimants who have chosen not to litigate but to compromise their claims outside of the court. Contrary to the suggestion of the plaintiffs’ steering committee," }, { "docid": "22747550", "title": "", "text": "face of legislative inaction, the federal courts — lacking authority to replace state tort systems with a national toxic tort compensation regime — endeavored to work with the procedural tools available to improve management of federal asbestos litigation. Eight federal judges, experienced in the superintendence of asbestos cases, urged the Judicial Panel on Multidistrict Litigation (MDL Panel), to consolidate in a single district all asbestos complaints then pending in federal courts. Accepting the recommendation, the MDL Panel transferred all asbestos cases then filed, but not yet on trial in federal courts to a single district, the United States District Court for the Eastern District of Pennsylvania; pursuant to the transfer order, the collected cases were consolidated for pretrial proceedings before Judge Weiner. See In re Asbestos Products Liability Litigation (No. VI), 771 F. Supp. 415, 422-424 (JPML 1991). The order aggregated pending cases only; no authority resides in the MDL Panel to license for consolidated proceedings claims not yet filed. B After the consolidation, attorneys for plaintiffs and defendants formed separate steering committees and began settlement negotiations. Ronald L. Motley and Gene Locks — later appointed, along with Motley’s law partner Joseph F. Rice, to represent the plaintiff class in this action— cochaired the Plaintiffs’ Steering Committee. Counsel for the .Center for Claims Resolution (CCR), the consortium of 20 former asbestos manufacturers now before us as petitioners, participated in the Defendants’ Steering Committee. Although the MDL Panel order collected, transferred, and consolidated only cases already commenced in federal courts, settlement negotiations included efforts to find a “means of resolving ... future cases.” Record, Doc. 3, p. 2 (Memorandum in Support of Joint Motion for Conditional Class Certification); see also Georgine v. Amchem Products, Inc., 157 F. R. D. 246, 266 (ED Pa. 1994) (“primary purpose of the settlement talks in the consolidated MDL litigatidn was to craft a national settlement that would provide an alternative resolution mechanism for asbestos claims,” including claims that might be filed in the future). In November 1991, the Defendants’ Steering Committee made an offer designed to settle all pending and future asbestos cases by providing" }, { "docid": "23219568", "title": "", "text": "asbestos litigation and complex class action suits. They also represent a majority of plaintiffs with claims pending against the Trust. Elihu Inselbuch of Caplin and Drysdale has served as counsel to Select Counsel for the beneficiaries and class counsel. His skilled services, extensive experience in asbestos litigation, inexhaustible patience and equanimity were instrumental in negotiating the class Settlement. Ronald L. Motley of Ness, Motley, Load-holt, Richardson & Poole in South Carolina has been representing asbestos plaintiffs since the mid-1970s. He was an original member of the Manville Asbestos Health Claimants Creditors Committee and was elected to the four person Negotiating Committee. He was also elected to the Select Counsel for the Beneficiaries and has served in that capacity continuously. Chief Judge Robert Parker in the Eastern District of Texas appointed him to the Plaintiffs’ Steering Committee in the proposed national class action pending in that district. He and other members of the committee have strong financial motives for remaining vigilant. See Appendices D and Dl, attached. Harry F. Wartnick of Cartwright, Slobo-din, Bokelman, Borowsky, Wartnick, Moore & Harris, Inc. in San Francisco has had significant experience in complex asbestos litigation and other consolidated trials. He has served as lead counsel in four major civil actions in California. He is also a member of two advisory committees on complex asbestos litigation in the San Francisco area. Robert B. Steinberg of Rose, Kline and Marias is a former President of the California Trial Lawyers Association. He has been involved with asbestos litigation since 1975 when he filed the first asbestos-related personal injury claim in Southern California. Christopher M. Placitella of Wilentz, Goldman & Spitzer in New Jersey has been involved in asbestos litigation since 1981. He was a member of the Negotiating Committee in the Manville bankruptcy proceeding. He is currently serving as one of the liaison counsel for the cases involving the New York Navy Yard and powerhouse cases before Justice Helen Freedman. Frederick M. Baron of Baron & Budd in Texas has had significant experience with the bankruptcy proceedings of major asbestos manufacturers. He has been the chairman of two" }, { "docid": "22747552", "title": "", "text": "a fund for distribution by plaintiffs’ counsel among asbestos-exposed individuals. The Plaintiffs’ Steering Committee rejected this offer, and negotiations fell apart. CCR, however, continued to pursue “a workable administrative system for the handling of future claims.” Id., at 270. , To that end, CCR counsel approached the lawyers who had headed the Plaintiffs’ Steering Committee in the unsuccessful negotiations, and a new round of negotiations began; that round yielded the mass settlement agreement now in controversy. At the time, the former heads of the Plaintiffs’ Steering Committee represented thousands of plaintiffs with then-pending asbestos-related claims — claimants the parties to this suit call “inventory” plaintiffs. CCR indicated in these discussions that it would resist settlement of inventory cases absent “some kind of protection for the future.” Id., at 294; see also id., at 295 (CCR communicated to the inventory plaintiffs’ attorneys that once the CCR defendants saw a rational way to deal with claims expected to be filed in the future, those defendants would be prepared to address the settlement of pending cases). Settlement talks thus concentrated on devising an administrative scheme for disposition of asbestos claims not yet in litigation. In these negotiations, counsel for masses of inventory plaintiffs endeavored to represent the interests of the anticipated future claimants, although those lawyers then had no attorney-client relationship with such claimants. Once negotiations seemed likely to produce an agreement purporting to bind potential plaintiffs, CCR agreed to settle, through separate agreements, the claims of plaintiffs who had already filed asbestos-related lawsuits. In one such agreement, CCR defendants promised to pay more than $200 million to gain release of the claims of numerous inventory plaintiffs. After settling the inventory claims, CCR, together with the plaintiffs’ lawyers CCR had approached, launched this case, exclusively involving persons outside the MDL Panel’s province — plaintiffs without already pending lawsuits. C The class action thus instituted was not intended to be litigated. Rather, within the space of a single day, January 15, 1993, the settling parties — CCR defendants and the representatives of the plaintiff class described below — presented to the District Court a" }, { "docid": "1425292", "title": "", "text": "contrary to the rule as established in Boyle which deals directly with liability for design defects in military equipment. Boyle, 487 U.S. 500, 512, 108 S.Ct. 2510, 2518, 101 L.Ed.2d 442; Niemann v. McDonnell Douglas Corp., 721 F.Supp. 1019 (S.D.Ill.1989). Defendants have satisfied the final requirement of removal under § 1442(a)(1) by asserting the government contractor immunity as a color-able federal defense. Therefore removal is appropriate both under §§ 1441(a) and 1442(a)(1). B. Transfer under 28 U.S.C. § HD7 Pursuant to the Order of the judicial panel on multidistrict litigation, Docket No. 875, these cases should be transferred to the Eastern District of Pennsylvania where all Federal Court asbestos personal injury actions have been centralized in a single forum pursuant to 28 U.S.C.A. § 1407. In its 1991 Order, the Panel found that the involved actions, similar to the instant cases, dealt with common questions of 'fact relating to injuries or wrongful death allegedly caused by exposure to asbestos, “and that centralization under § 1407 in the Eastern District of Pennsylvania will best serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.” In re Asbestos Products Liability Litigation (NO. VI), 771 F.Supp. 415 (J.P.M.L.1991). The Panel also explained that upon the filing of “tag-along” actions, which include actions, such as this, filed subsequent to the issuance of the Panel’s order and involving common questions of fact with the actions under consideration by the Panel for transfer, the Clerk of the Panel shall be notified in order to determine whether transfer is appropriate. Id. at 422; See Rule 13, R.P.J.P.M.L., 120 F.R.D. 251, 259 (1988). Since the instant eases deal with questions common to those discussed in the Panel’s transfer Order, this Court shall treat them as “tag-along” actions and notify the Clerk of the Panel regarding possible transfer. The pending motions to dismiss filed by defendants will not be considered at this time since the underlying matters appear to be under the jurisdiction of MDL Order 875 which indicates that all “pretrial” proceedings should be coordinated or consolidated by the transferee" }, { "docid": "22158889", "title": "", "text": "two to one; exhaustion of assets threatens and distorts the process; and fixture claimants may lose altogether. In re Asbestos Prods. Liab. Litig. (No. VI), 771 F.Supp. 415, 418-19 (J.P.M.L.1991) (quoting Report of The Judicial Conference Ad Hoc Committee on Asbestos, 1-3 (1991)) (footnote omitted). Seeking solutions to the asbestos litigation crisis, eight federal judges with significant asbestos experience wrote to the Judicial Panel on Multidistriet Litigation (“MDL Panel”), urging it to consolidate all the federal asbestos litigation in a single district. These judges argued that consolidation would “facilitate global settlements, and allow the transferee court to fully explore ... national disposition techniques such as classes and subclasses under Rule 23.” Georgine, 157 F.R.D. at 265 (citation and internal quotations omitted). The MDL Panel agreed, transferring all pending federal court asbestos cases that were not yet on trial to the Eastern District of Pennsylvania, and assigning them to Judge Charles R. Weiner for consolidated pretrial proceedings. See In re Asbestos Prods. Liab. Litig. (No. VI), 771 F.Supp. at 424. After the MDL Panel transfer, steering committees for the plaintiffs and defendants were formed and commenced global settlement negotiations. Judge Weiner appointed two of the class counsel in this ease, Ronald Motley and Gene Locks, as co-chairs of the Plaintiffs’ Steering Committee. Counsel for CCR were active participants on the Defendants’ Steering Committee. When these negotiations reached an impasse, class counsel and CCR began negotiations to resolve CCR’s asbestos liability. After a year of discussions, the two sides reached a settlement agreement, and then filed this class action. B. Proceedings in the District Court On January 15, 1993, the named plaintiffs filed a complaint on behalf of a class consisting of (1) all persons exposed occupationally or through the occupational exposure of a spouse or household member to asbestos-containing products or asbestos supplied by any CCR defendant, and (2) the spouses and family members of such persons, who had not filed an asbestos-related lawsuit against a CCR defendant as of the date the class action was commenced. Five of the named plaintiffs allege that they have sustained physical injuries as a" }, { "docid": "23219878", "title": "", "text": "trial-judge cooperation on a statewide and national level is not typical of the American judicial systems. The Judicial Panel on Multidistrict Litigation recently heard arguments on whether to consolidate all federal asbestos cases for pretrial purposes (MDL action); this similarly reflects dissatisfaction with efforts to handle asbestos cases on an individual basis. See In re Asbestos Prods. Liab. Litig., (No. VI) (Docket No. 875, Jan. 17, 1991) (Jud.Pan. on MDL). Transfer through the Multidistrict Panel of all asbestos cases for pretrial purposes was denied five times between 1977 and 1987. See Judicial Conference Asbestos Report at 22. At this stage of mature asbestos mass tort litigation there is a danger that MDL action might serve only to delay further ultimate resolution of many cases. Especially in states with efficient pretrial and trial management schemes in place, the disruption and sheer number of cases would generate initial confusion and a period of adjustment, slowing the flow of funds to the injured. This is so because the MDL panel may in theory only consolidate the cases for pretrial and settlement, not for trial. See 28 U.S.C. § 1407. Since most cases are pending in state courts and the MDL Panel has no power to move these cases, at best, it could only ameliorate, not solve, the national problem. Some new form of partial MDL action, however, could be structured to avoid disruption. MDL action could become a catalyst for a national solution. MDL treatment could serve to streamline procedures and ensure more uniform timing and trial-readiness for similarly-situated parties nationwide. Most significantly, it would create a forum with all parties to federal cases before it. There are now unprecedented opportunities in the asbestos litigation for nationwide action and settlement of these claims with the hope that all resources and assets would be before a single tribunal or group of judges. The newer defendants could consistently and effectively be brought in and contribute their fair share. Integration of the scattered asbestos cases and funds is essential for efficient disposition. As Appendix C, attached, suggests, there is strong reason to believe that unless changes" }, { "docid": "21367118", "title": "", "text": "ORDER & REASONS FALLON, District Judge. Before the Court is the Plaintiffs’ Steering Committee’s (“PSC”) Motion for Certification of a Nation-Wide Class Action for Personal Injury and Wrongful Death (Rec.Doe.2171). The Court heard oral argument and took this motion under submission. For the following reasons, the PSC’s motion is DENIED. I. BACKGROUND This multidistrict products liability litigation involves the prescription drug Vioxx, known generically as Rofeeoxib. Merck & Co., Inc. (“Merck”), a New Jersey corporation, researched, designed, manufactured, marketed, and distributed Vioxx to relieve pain and inflammation resulting from osteoarthritis, rheumatoid arthritis, menstrual pain, and migraine headaches. On May 20, 1999, the Food and Drug Administration (“FDA”) approved Vioxx for sale in the United States. Vioxx remained on the market until September 30, 2004, at which time Merck withdrew it from the market when data from a clinical trial known as APPROVe indicated that the use of Vioxx increased the risk of cardiovascular thrombotic events such as myocardial infarctions (heart attacks) and ischemic strokes. Thereafter, thousands of individual suits and numerous class actions were filed against Merck in state and federal courts throughout the country alleging various tort and products liability claims. It is estimated that 105 million prescriptions for Vioxx were written in the United States between May 20,1999 and September 30, 2004. Based on this estimate, it is thought that approximately 20 million patients have taken Vioxx in the United States. On February 16, 2005, the Judicial Panel on Multidistrict Litigation (“JPML”) conferred multidistrict litigation status on Vioxx lawsuits filed in federal court and transferred all such cases to this Court to coordinate discovery and to consolidate pretrial matters pursuant to 28 U.S.C. § 1407. See 360 F.Supp.2d 1352. This multidistrict litigation is designated MDL-1657 and is captioned In re Vioxx Products Liability Litigation. The first status conference in this MDL was held on March 18, 2005. Shortly thereafter, the Court appointed committees of counsel to represent the parties and discovery in this litigation commenced. Conferences to review the status of the proceedings and to deal with various issues coming before the Court have been held on a" }, { "docid": "15887666", "title": "", "text": "they negotiate a “global settlement” of all of Fibreboard’s asbestos liabilities. The negotiations initially failed, perhaps because of the massive scope of the undertaking. Fibreboard then adopted a risky strategy of assigning claims against its insurers in settlement of individual suits. The danger was that these settlements arguably violated the insurance policies. Fortunately for Fibreboard, a California court approved the deals. Then something odd happened: Fibreboard settled a large number of cases with Ness Motley — Motley and Rice’s law firm— by assigning insurance assets, and brought an action in the Eastern District of Texas seeking approval of the settlement. Why would Fibreboard, a California company, roll the dice in Texas when it had already won in California? Because something important had happened in Pennsylvania. The Judicial Panel on Multidistriet Litigation had transferred all pending asbestos cases not yet on trial to a district court in Pennsylvania. See Georgine v. Amchem Prods., 83 F.3d 610, 619 (3d Cir.1996). Then-Chief Judge Robert Parker of the Eastern District of Texas wrote a letter to the transferee judge, telling him that he (the Pennsylvania judge) was “the Eisenhower of this D-Day operation” and encouraging him to prod the parties to a global settlement. See Coffee, supra note 1, at 1390. When the plaintiffs’ steering committee rejected such a proposal, twenty defendants approached a minority faction of the committee — Motley and Gene Locks — and reached a global settlement with them. See id. at 1391-92, 1457. Actually, they made a series of deals: a class action settlement for future asbestos victim claimants and separate settlements for the lawyers’ pre-existing, individual clients. The separate settlements were significantly more lucrative than the class one. See id. at 1392-93; Koniak, Feasting, supra note 4, at 1052. In fact, Motley received fifty percent more for his own clients than he did for those in the class. See Coffee, supra note 1, at 1397; Koniak, Feasting, supra note 4, at 1067. The Third Circuit rejected the settlement, finding that class counsel — including Motley — were hopelessly conflicted. See Georgine, 83 F.3d at 630-31. As the Georgine negotiations" }, { "docid": "22747551", "title": "", "text": "settlement negotiations. Ronald L. Motley and Gene Locks — later appointed, along with Motley’s law partner Joseph F. Rice, to represent the plaintiff class in this action— cochaired the Plaintiffs’ Steering Committee. Counsel for the .Center for Claims Resolution (CCR), the consortium of 20 former asbestos manufacturers now before us as petitioners, participated in the Defendants’ Steering Committee. Although the MDL Panel order collected, transferred, and consolidated only cases already commenced in federal courts, settlement negotiations included efforts to find a “means of resolving ... future cases.” Record, Doc. 3, p. 2 (Memorandum in Support of Joint Motion for Conditional Class Certification); see also Georgine v. Amchem Products, Inc., 157 F. R. D. 246, 266 (ED Pa. 1994) (“primary purpose of the settlement talks in the consolidated MDL litigatidn was to craft a national settlement that would provide an alternative resolution mechanism for asbestos claims,” including claims that might be filed in the future). In November 1991, the Defendants’ Steering Committee made an offer designed to settle all pending and future asbestos cases by providing a fund for distribution by plaintiffs’ counsel among asbestos-exposed individuals. The Plaintiffs’ Steering Committee rejected this offer, and negotiations fell apart. CCR, however, continued to pursue “a workable administrative system for the handling of future claims.” Id., at 270. , To that end, CCR counsel approached the lawyers who had headed the Plaintiffs’ Steering Committee in the unsuccessful negotiations, and a new round of negotiations began; that round yielded the mass settlement agreement now in controversy. At the time, the former heads of the Plaintiffs’ Steering Committee represented thousands of plaintiffs with then-pending asbestos-related claims — claimants the parties to this suit call “inventory” plaintiffs. CCR indicated in these discussions that it would resist settlement of inventory cases absent “some kind of protection for the future.” Id., at 294; see also id., at 295 (CCR communicated to the inventory plaintiffs’ attorneys that once the CCR defendants saw a rational way to deal with claims expected to be filed in the future, those defendants would be prepared to address the settlement of pending cases). Settlement talks" }, { "docid": "22158888", "title": "", "text": "therefore, set forth only the essentials. A. The Genesis of the Case This case arises against the background of an asbestos litigation crisis: [This] is a tale of danger known in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s. On the basis of past and current filing data, and because of a latency period that may last as long as 40 years for some asbestos related diseases, a continuing stream of claims can be expected. The final toll of asbestos related injuries is unknown. Predictions have been made of 200,000 asbestos disease deaths before the year 2000 and as many as 265,000 by the year 2015. The most objectionable aspects of asbestos litigation can be briefly summarized: dockets in both federal and state courts continue to grow; long delays are routine; trials are too long; the same issues are litigated over and over; transaction costs exceed the victims’ recovery by nearly two to one; exhaustion of assets threatens and distorts the process; and fixture claimants may lose altogether. In re Asbestos Prods. Liab. Litig. (No. VI), 771 F.Supp. 415, 418-19 (J.P.M.L.1991) (quoting Report of The Judicial Conference Ad Hoc Committee on Asbestos, 1-3 (1991)) (footnote omitted). Seeking solutions to the asbestos litigation crisis, eight federal judges with significant asbestos experience wrote to the Judicial Panel on Multidistriet Litigation (“MDL Panel”), urging it to consolidate all the federal asbestos litigation in a single district. These judges argued that consolidation would “facilitate global settlements, and allow the transferee court to fully explore ... national disposition techniques such as classes and subclasses under Rule 23.” Georgine, 157 F.R.D. at 265 (citation and internal quotations omitted). The MDL Panel agreed, transferring all pending federal court asbestos cases that were not yet on trial to the Eastern District of Pennsylvania, and assigning them to Judge Charles R. Weiner for consolidated pretrial proceedings. See In re Asbestos Prods. Liab. Litig. (No. VI), 771 F.Supp. at 424. After the MDL Panel transfer, steering" }, { "docid": "19686900", "title": "", "text": "across the United States in numerous federal and state courts. All of the state court cases except those filed in California and Nevada between non-diverse parties were removed to federal court. The first lawsuits, filed in December, 1980, were assigned to the Hon. Roger L. Foley. On December 9, 1980, an Interim Committee of Plaintiffs’ Counsel was appointed to serve on behalf of all plaintiffs. Pretrial Order No. 1. On December 22, 1980, the first pretrial conference was held. On January 30, 1981, the Court entered its first Order which stayed further discovery and the appointment of a permanent committee of plaintiffs’ counsel until the outcome of the motions for transfer and consolidation pending before the Judicial Panel on Multidistrict Litigation. Pretrial Order No. 1. On May 5, 1981, the Judicial Panel on Multidistrict Litigation acted on the motions and transferred all federal court actions to the United States District Court for the District of Nevada for coordinated and consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. This judge was then assigned, pursuant to an intercireuit assignment order issued by Chief Justice Warren E. Burger, to the District of Nevada to handle the pretrial proceedings. On June 18, 1981, the first pretrial conference by this judge was held. Thereafter, on August 13, 1981, the Plaintiffs’ Legal Committee (“PLC”) was appointed to initiate, coordinate and conduct all pretrial liability and damage discovery on behalf of all plaintiffs who filed civil actions governed by the MDL No. 453 and known as the “MGM Grand Hotel Fire Litigation.” Pretrial Order No. 8. Moreover, in that Order, the Court provided that all settlements agreed to and fully consummated by 4:00 P.M., Monday, September 21, 1981, would be presumed to have been achieved without material benefit by the work of the PLC and that accordingly no consideration to an assessment of the settlements would be given by the Court for the work of the PLC. Pretrial Order No. 8, 19(B). Any settlements arrived at after September 21, 1981, would be presumed to have benefited from the efforts and work of the PLC and an" }, { "docid": "23219534", "title": "", "text": "by the Chief Justice, recently issued a report that recommended that Congress amend the multidistrict litigation legislation to permit consolidation for trial as well as — its current provisions — for pretrial proceedings. Other changes would enable related state and federal cases to be consolidated in the federal courts. Report of the Federal Courts Study Committee 44 (Apr. 2, 1990). As yet another indication of the condition faced by the courts, despite five prior refusals to consolidate asbestos personal injury cases pursuant to section 1407, the Judi cial Panel on Multidistrict Litigation has decided to revisit the question. The panel issued an Order to Show Cause on January 17, 1991. It ordered all parties in asbestos cases pending in federal courts to show cause why the actions should not be transferred to a single district for coordinated or consolidated pretrial proceedings. See In re Asbestos Prod. Liab. Litig., MDL-875, 2 (J.P.M.L., Jan. 17, 1991). The Panel explained its actions as follows: Our goals here are to utilize Section 1407 in order to streamline the common questions in this litigation to the greatest extent possible; to eliminate duplication and overlap; to encourage a uniform case management plan; to allow for division of responsibility among the assigned judges; to provide a mechanism for the transferee judges to fully explore the uniform use of dispositive techniques (such as (a) classes and subclasses under Fed.R.Civ.P. Rule 23, (b) pleural registries, (c) separately consolidated pretrial or trial on any common issues or claims; and (d) separated or reverse trials on various issues); to focus the circuit appellate process regarding centralized rulings; to provide a method whereby repetition in newly filed actions is eliminated; to provide a focal point to facilitate coordination with the mammoth number of asbestos actions pending in state courts; and, most importantly, to better implement Rule l's edict to secure the just, speedy and inexpensive determination of federal litigation. Id. A full day hearing was conducted by the Panel on May 30, 1991. In addition to these efforts, committees of federal judges and state judges handling large numbers of asbestos cases have" }, { "docid": "23219533", "title": "", "text": "(1983). While none of these proposal were enacted into law, Congress did amend the Longshoremen’s and Harbor Workers’ Compensation Act with respect to claims related to occupational diseases, including claims arising out of exposure to asbestos. See Long-shore and Harbor Workers’ Compensation Act of 1984, Pub.L. No. 98-426, 98 Stat. 1639. A bill providing federal district courts with original jurisdiction in mass tort cases in which at least twenty-five persons sustained injuries resulting in damages in excess of $50,000 each recently passed the House of Representatives. Multiparty, Multiforum Jurisdiction Act, H.R. 3406, 101st Cong., 1st Sess. (1989). As already noted, the Judicial Conference of the United States has drafted a fourteen-point Plan for handling the problem of cost and delay in civil litigation. See Judicial Conference Approves Plan to Improve Civil Case Management, 22 The Third Branch 1 (May 1990); see also Judicial Improvement Act of 1990, S. 2648, 102nd Cong., 1st Sess. (1990) (attempting to address problems of case management in complex litigation). The Federal Courts Study Committee chartered by Congress, including members appointed by the Chief Justice, recently issued a report that recommended that Congress amend the multidistrict litigation legislation to permit consolidation for trial as well as — its current provisions — for pretrial proceedings. Other changes would enable related state and federal cases to be consolidated in the federal courts. Report of the Federal Courts Study Committee 44 (Apr. 2, 1990). As yet another indication of the condition faced by the courts, despite five prior refusals to consolidate asbestos personal injury cases pursuant to section 1407, the Judi cial Panel on Multidistrict Litigation has decided to revisit the question. The panel issued an Order to Show Cause on January 17, 1991. It ordered all parties in asbestos cases pending in federal courts to show cause why the actions should not be transferred to a single district for coordinated or consolidated pretrial proceedings. See In re Asbestos Prod. Liab. Litig., MDL-875, 2 (J.P.M.L., Jan. 17, 1991). The Panel explained its actions as follows: Our goals here are to utilize Section 1407 in order to streamline the common" }, { "docid": "11229454", "title": "", "text": "ORDER ON JOINT PETITION OF CLASS COUNSEL AND PLAINTIFFS’ STEERING COMMITTEE FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES BRIMMER, District Judge. This matter came before the Court upon the Joint'Petition of Class Counsel and Plaintiffs’ Steering Committee seeking an award of attorneys’ fees and expenses from the common fund created by the settlement of this action. - The Court, having heard oral argument, having reviewed the materials on file, and being fully advised in the premises herein, hereby FINDS and ORDERS as follows: Background The Court has provided a more detailed history of this action in its prior orders. See In re Copley Pharmaceutical, Inc., 161 F.R.D. 456 (D.Wyo.1995); In re Copley Pharmaceutical, Inc., 158 F.R.D. 485 (D.Wyo.1994); Order Approving Settlement, November 15, 1995. Suffice it to say that this action arose out of the contamination with pseudomonas fluorescens of four batches of Albuterol manufactured by Defendant Copley Pharmaceutical, Inc. Individuals believing that this organism, or other contaminants in Defendant’s products, caused injuries to themselves or others brought suit in state and federal courts throughout the country. Defendant removed those actions that it could to federal court, and eventually sought relief from the Judicial Panel for Multi-Dis-trict Litigation. On June 7, 1994, the MDL Panel consolidated all federal cases against Defendant before this Court. Following certification as a class action and appointment of class counsel, this action moved forward with surprising speed and efficiency. During expedited discovery, class counsel reviewed and analyzed more than 125,000 pages of documents and deposed roughly one hundred witnesses. One year and seven days after consolidation before this Court, trial commenced. And after 42 days of trial, in which each side presented an impressive case, the parties entered into a preliminary settlement agreement. Class counsel and Plaintiffs’ Steering Committee (“class counsel”) now seek attorneys’ fees and expenses pursuant to that settlement agreement (“Agreement”). Class counsel requests an award of 25% of what they deem to be a $150 million fund, resulting in a fee of $37.5 million; Defendant urges the Court to award roughly 20% of the $60 million that it" }, { "docid": "7794929", "title": "", "text": "such exposure has occurred.” MML Order 3 at VIII(2). MML Orders 3 and 4 are applicable to all asbestos cases filed in the District of Massachusetts \"except as otherwise directed by the Court upon motion and for cause shown by the party seeking to have [the Orders] declared inapplicable.” MML Orders 3 and 4 at II. . In re: Asbestos Products Liability Litigation, 771 F.Supp. 415 (J.P.M.L.1991), the MDL Panel issued an order transferring all pending asbestos-related personal injury and wrongful death cases filed in federal courts to the District Court for the Eastern District of Pennsylvania, assigning them to Judge Charles R. Weiner for coordinated pretrial proceedings. Asbestos-related cases filed in federal courts after this order was issued may be certified for transfer by the MDL Panel pursuant to 28 U.S.C. § 1407 and in accordance with the Rules of Procedure of the Judicial Panel on Multidistrict Litigation, 147 F.R.D. 589 (J.P.M.L.1993). At the time of the show-cause hearing, Appellants' case was subject to a conditional transfer order issued by the MDL Panel. . Rule 21 states that: Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately. Fed.R.Civ.P. 21. . Appellants also allege that Massachusetts Multiple Litigation Orders 3 and 4 (“MML Orders 3 and 4\") are inconsistent with Fed.R.Civ.P. 20 and 8(a) governing joinder and pleading requirements and should be declared invalid. However, Appellants failed to challenge the substance of these rules to the court below, other than erroneously asserting that Local Rules do not apply to asbestos-related cases (see n. 7, infra), nor did they avail themselves of the provisions in MML Orders 3 and 4 allowing them to show good cause as to why the Local Rules should not apply to their action. Hence, they have waived these issues on appeal. . Appellants' Complaint fails to satisfy the" }, { "docid": "22158890", "title": "", "text": "committees for the plaintiffs and defendants were formed and commenced global settlement negotiations. Judge Weiner appointed two of the class counsel in this ease, Ronald Motley and Gene Locks, as co-chairs of the Plaintiffs’ Steering Committee. Counsel for CCR were active participants on the Defendants’ Steering Committee. When these negotiations reached an impasse, class counsel and CCR began negotiations to resolve CCR’s asbestos liability. After a year of discussions, the two sides reached a settlement agreement, and then filed this class action. B. Proceedings in the District Court On January 15, 1993, the named plaintiffs filed a complaint on behalf of a class consisting of (1) all persons exposed occupationally or through the occupational exposure of a spouse or household member to asbestos-containing products or asbestos supplied by any CCR defendant, and (2) the spouses and family members of such persons, who had not filed an asbestos-related lawsuit against a CCR defendant as of the date the class action was commenced. Five of the named plaintiffs allege that they have sustained physical injuries as a result of exposure to the defendants’ asbestos products. Four named plaintiffs allege that they have been exposed to the CCR defendants’ asbestos-containing products but have not yet sustained any asbestos-related condition. On December 22,1993, the settling parties stipulated to the substitution of Robert A. Geor-gine for Edward J. Carlough as the lead plaintiff, and the caption of the case has been changed accordingly. See Georgine, 157 F.R.D. at 257 n. 1. We thus refer to the plaintiff class as the Georgine class. The complaint asserts various legal theories, including (1) negligent failure to warn, (2) strict liability, (3) breach of express and implied warranty, (4) negligent infliction of emotional distress, (5) enhanced risk of disease, (6) medical monitoring, and (7) civil conspiracy. Each plaintiff seeks unspecified damages in excess of $100,000. On the same day, the CCR defendants filed an answer, denying the allegations of the plaintiffs’ class action complaint and asserting eleven affirmative defenses. Also on the same day, the plaintiffs and defendants (“the settling parties”) jointly filed a motion seeking conditional class certification" } ]

[ { "docid": "11933002", "title": "", "text": "in this case. What occurred thereafter is the important thing to consider. The officers were justified in pursuing the appellant and in finally arresting him because of his violation of the speed limits and his failure to stop at stop signs. Robertson v. State, supra, 184 Tenn. 277, 282-283, 198 S.W.2d 663. But appellant contends that his arrest for misdemeanors such as these traffic violations did not, under the Tennessee law, authorize the arresting officer to search appellant’s automobile. The District Judge recognized the validity of this contention, Elliott v. State, 173 Tenn. 203-210-211, 116 S.W.2d 1009, but this is not dis-positive of the case. The moonshine whiskey in the present case was not discovered and seized by a search of appellant’s automobile. It was unnecessary to search the automobile in that the cartons containing the jugs of moonshine whiskey were exposed to public view when the trunk compartment of appellant’s car became open when his car overturned. It is not a search to observe that which occurs openly in a public place and which is fully disclosed to visual observation. Trujillo v. United States, 294 F.2d 583, C.A.10th; Petteway v. United States, 261 F.2d 53, C.A.4th; United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 71 L.Ed. 1202. The officers upon observance of the commission of a criminal offense in their presence, had the legal right to seize the contraband property involved. United States v. Eisner, 297 F.2d 595, 597-598, C.A. 6th, cert. denied, 369 U.S. 859, 82 S.Ct. 947, 8 L.Ed.2d 17; Kelly v. United States, 197 F.2d 162, 164, C.A. 5th; United States v. Peisner, 198 F.Supp. 67, note 6, p. 71, D.C.Md. See: Harris v. United States, supra, 331 U.S. 145, 154-155, 67 S.Ct. 1098. In our opinion, there was no error on the part of the District Judge in overruling the motion to suppress and in finding the appellant guilty as charged. The judgment is affirmed." } ]

[ { "docid": "8796136", "title": "", "text": "before the District Judge. On appeal by brief and argument, appellant contends through his counsel that erroneous representations in the affidavit were knowingly, falsely and fraudulently made by Lt. Scully and that this fraud was so material as to destroy the integrity of the affidavit (Cf. Rugen-dorf v. United States, 376 U.S. 528, 532. 84 S.Ct. 825, 11 L.Ed.2d 887 (1964)) and “vitiate the warrant and the search” (Cf. King v. United States, 282 F.2d 398 (C.A. 4, 1960)). This record shows that there were erroneous representations made in the affidavit upon which the search warrant for the house was issued. But the contention that these errors were of such magnitude and based on such a fraudulent purpose as to vitiate the warrant was never presented to the District Judge either by the motion to suppress or the amendment thereto, or at the hearing thereon, or for that matter, on motion for new trial after conviction. And, of course, since the charge of intent to deceive the issuing magistrate was not made, the record is barren of any answers which the charge might have produced. Generally, we do not reverse on issues not shown to have been specifically presented to the court below. United States v. Doelker, 327 F.2d 343 (C.A. 6, 1964); Holt v. United States, 303 F.2d 791, 794 (C.A. 8, 1962), cert. denied, 372 U.S. 970, 83 S.Ct. 1095, 10 L.Ed.2d 132 (1963). And while we are aware of the “plain error” rule, Rule 52(b), Fed. R. Crim.P., we believe its application under the circumstances of this case is discretionary. Gendron v. United States, 295 F.2d 897, 902 (C.A. 8, 1961); United States v. Sferas, 210 F.2d 69 (C.A. 7, 1954), cert. denied, 347 U.S. 935, 74 S. Ct. 630, 98 L.Ed. 1086 (1954); United States v. Diggs, 304 F.2d 929 (C.A. 6, 1962). While we have noted that the intent to deceive the magistrate charge was never presented to the District Judge, he did have clearly before him the factual errors in the affidavit upon which appellant now relies. Under this circumstance, we read the denial" }, { "docid": "9747302", "title": "", "text": "considered in determining how much weight and credibility his testimony should be given, and that the testimony of an informer must be weighed with great care and be scrutinized closely, carefully and cautiously. The substance of these requested instructions was given to the jury with respect to all the witnesses, without a separate reference to the testimony of the informer. The trial judge is not required to instruct the jury in the exact language requested by the defendant. Henderson v. United States, 218 F.2d 14, 18, 50 A.L.R.2d 754, C.A. 6th, cert. denied 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253, rehearing denied, 349 U.S. 969, 75 S.Ct. 879, 99 L.Ed. 1290. Although it would have been better practice for the District Judge to have given a separate instruction with particular reference to the testimony of the informer, the failure to do so was not reversible error. United States v. Finazzo, 288 F.2d 175, 176, C.A. 6th, cert. denied, 368 U.S. 837, 82 S.Ct. 37, 7 L.Ed.2d 38; Continental Baking Co. v. United States, 281 F.2d 137, 155, C.A. 6th. See: Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 61 L.Ed. 442. We find no merit in the defendant’s further contention that it was reversible error to require him to go to trial without the production by the District Attorney of certain records called for by a subpoena directed to him. The records were not in the possession of the District Attorney. United States v. Cohen, S.D.N.Y., 15 F.R.D. 269, 273. The information contained in the records was to a substantial degree given to defendant’s attorney orally by the District Attorney during the trial. The judgment is affirmed." }, { "docid": "9747301", "title": "", "text": "defendant in accordance with arrangements between them. The defendant’s wife made no objection to the entry of the agent and the informer. Under the circumstances, the entry into the house was not illegal. Roberts v. United States, 332 F.2d 892, 895, 896, C.A. 8th; Stein v. United States, 166 F.2d 851, 855, C.A. 9th, cert. denied, 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768; United States v. Sferas, 210 F.2d 69, 74, C.A. 7th, cert. denied, sub nom. Skally v. United States, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086; United States v. Pugliese, 153 F.2d 497, 499, C.A. 2nd. The whiskey which the agent saw in the house after entry was fully disclosed to visual observation without the necessity of searching for it and did not constitute an illegal search. United States v. Williams, 314 F.2d 795, 798, C.A. 6th; United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 71 L.Ed. 1202. The defendant requested the District Judge to instruct the jury that the motives of an informer should be considered in determining how much weight and credibility his testimony should be given, and that the testimony of an informer must be weighed with great care and be scrutinized closely, carefully and cautiously. The substance of these requested instructions was given to the jury with respect to all the witnesses, without a separate reference to the testimony of the informer. The trial judge is not required to instruct the jury in the exact language requested by the defendant. Henderson v. United States, 218 F.2d 14, 18, 50 A.L.R.2d 754, C.A. 6th, cert. denied 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253, rehearing denied, 349 U.S. 969, 75 S.Ct. 879, 99 L.Ed. 1290. Although it would have been better practice for the District Judge to have given a separate instruction with particular reference to the testimony of the informer, the failure to do so was not reversible error. United States v. Finazzo, 288 F.2d 175, 176, C.A. 6th, cert. denied, 368 U.S. 837, 82 S.Ct. 37, 7 L.Ed.2d 38; Continental Baking Co. v. United States," }, { "docid": "4479006", "title": "", "text": "presumption.” [Emphasis added.] Here, until, confronted with the guns, relator had told the police that he had thrown them on a “trash truck” because he. knew that having these guns would “cause him alot of trouble”. The jury was thus at liberty to believe from relator’s statement that he knew these guns were stolen because the source from which they were obtained and his expression of fear of resulting trouble if found in relator’s possession. Turning to relator’s second allegation of an illegal search and seizure of the two (2) pistols, we find that his argument is without merit. It has been held that voluntary consent by a wife or other relative may under proper facts support a search that turns up evidence of an accused’s criminal conduct. See Maxwell v. Stephens, 348 F.2d 325, 326-327 (8th Cir. 1965) cert. denied 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353. In the case of United States v. Ball, 344 F.2d 925, 926-927 (6th Cir. 1965) the court approved testimony given by a government witness regarding incriminating evidence, observed after a warrantless entry into the accused’s home with the consent of his wife. The court supported its ruling by citing cases which had held that, under the facts there involved, a wife’s consent was a valid substitute for a search warrant. Roberts v. United States, 332 F.2d 892, 895-898 (8th Cir. 1964) cert. denied 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274; Stein v. United States, 166 F.2d 851, 855 (9th Cir. 1948) cert. denied 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768. We think it right to add that the Supreme Court in Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 65 L.Ed. 654 (1921) specifically declined to rule on the question here involved holding there that the wife’s consent had been coerced. We hold that in the factual context of this case the wife’s consent made lawful the seizure of the guns and their use as evidence. In the case at bar it is uncontradieted that the search for the guns was made only" }, { "docid": "6015212", "title": "", "text": "366 (6th Cir. 1965) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). We read the District Judge’s finding as adequately obedient to the applicable rule. There remains, however, for us to say whether the wife’s voluntary consent validated what was done. We will not essay refined determination whether we deal here with a seizure of property not described in a valid search warrant, or whether the seizure was made subsequent to the first search — in a second search, made without a warrant — but with the voluntary consent of the wife of the house. It would serve little purpose for us to engage in fresh dissertation upon nuances that might separate this case from others considered in the already abundant literature on search and seizure. We consider that, under the facts of this case, the wife’s consent validated the seizure of the suits and their use as evidence at the trial. It has been held that voluntary consent by a wife or other relative may, under proper facts, support a search that turns up evidence of an accused’s criminal conduct. See Maxwell v. Stephens, 348 F.2d 325, 336-337 (8th Cir. 1965) cert, denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353, and the extensive discussion and citation of authorities relevant to the subject we consider. In our case of United States v. Ball, 344 F.2d 925, 926-27 (6 Cir. 1965), we approved of testimony given by government witnesses regarding incriminating evidence, observed after a warrantless entry into the accused’s home with the consent of his wife. We supported our ruling by citing cases which had held that, under the facts there involved, a wife’s consent was a valid substitute for a search warrant. See Roberts v. United States, 332 F.2d 892, 895-898 (8th Cir. 1964), cert, denied, 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274; Stein v. United States, 166 F.2d 851, 855 (9th Cir. 1948), cert, denied, 334 U.S. 844, 68 S.Ct. 1512, 92 L. Ed. 1768. We think it right to add that the Supreme Court in Amos v." }, { "docid": "17834370", "title": "", "text": "Von Eichelberger v. United States, 252 F.2d 184 (9th Cir. 1958), it was held not unreasonable for government investigating agents, upon the request of the person in control, to enter his garage and open boxes containing firearms stored there by the defendant. In United States v. Walker, 190 F.2d 481 (2d Cir.), cert. denied, 342 U.S. 868, 72 S.Ct. 109, 96 L.Ed. 653 (1951), and 197 F.2d 287 (2d Cir.), cert. denied, 344 U.S. 877, 73 S.Ct. 172, 97 L.Ed. 679 (1952), it was held that the search of the defendant’s luggage after his arrest, and with the consent of his presumed wife was not unreasonable. And in Driskill v. United States, 281 F. 146 (9th Cir. 1922), a search conducted under circumstances very similar to those in Von Eichelberger, supra, was upheld. See also Stein v. United States, 166 F.2d 851 (9th Cir.), cert. denied, 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768 (1948), and United States v. Rees, 193 F.Supp. 849 (D.Md.1961). Affirmed. . The comparative instructions are as follows: Fletcher: “By [credibility] I mean, the amount of credit which you will give to the testimony of each witness, and in determining the credibility, you should take into consideration * * * any bias or prejudice on the part of any witness * * *. You may also consider any interest which any witness has in the outcome of the case * * Transcript of Testimony, p. 177. Orebo: “All evidence of a witness whose self interest or attitude is shown to be such as might tend to prompt testimony unfavorable to the accused, should be considered with caution and weighed with great care.” 293 F.2d at 750, n. 4. The instant ease: “You should carefully scrutinize the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to indicate whether the witness is worthy of belief. Consider each witness’s intelligence, motive and state of mind, and demeanor and manner while on the stand. Consider also any relation each witness may bear to either side of the case; the manner" }, { "docid": "22861709", "title": "", "text": "previous or at the time the requests were actually given. They had full opportunity to make the most of presenting their theories. If their requests were inadequate to present their theories, the fault certainly can not be charged to the Court. (b) Reasonable Doubt The Court properly instructed the jury on reasonable doubt. It was not necessary for him to give a charge (Request U) which related the doubt to a particular witness. The Court gave proper instructions on the credibility of witnesses. (c) Ratification Nor was the District Court required to give the requested instructions on ratification by Hoffa of the endeavors to influence the jury, as there was no evidence which would justify giving them. Hoffa did not admit that he knew of the endeavors nor that they were agreeable with him. He denied all of the statements attributed to him by Partin. If the Government’s evidence was to be believed, he was an active participant, and not a mere ratifier. (d) Informer Cautionary Instruction. Appellants contend that it was prejudicial error for the Court to refuse to give a specific cautionary instruction with respect to informers. They claim that Partin was a paid informer and that the Court should have instructed the jury that his testimony was to be received with caution. There was no evidence that Partin received money from the Government except for expenses which he incurred some time after the trial. Whether a special cautionary instruction should have been given on informers was within the discretion of the Court, to be exercised in accordance with the particular facts and circumstances of each case. Siglar v. United States, 208 F.2d 865 (C.A. 5, 1954) cert. denied 347 U.S. 991, 74 S.Ct. 854, 98 L.Ed. 1125. The Court did give a cautionary instruction although not in the language requested, and it did not mention informers specifically. It was a comprehensive charge on credibility, which covered all of the elements to be considered in weighing the testimony of the witnesses and parties in this case- He told the jury to— “ * * * scrutinize carefully the" }, { "docid": "21378697", "title": "", "text": "192, 61 L.Ed. 442; Wegman v. United States, 272 F.2d 31, 33, C.A.8. Another assignment of error is that the trial judge refused to instruct the jury as to defendant’s theory of the case. The trial judge refused to give an instruction which was submitted in writing before arguments to the jury. (Rule 30, F.R.Cr.P.) This requested instruction unduly emphasized a piece of evidence which defendant’s counsel considered favorable to defendant. Blauner v. United States, 293 F.2d 723, 737-738, C.A.8, cert. den. 368 U.S. 931, 82 S.Ct. 368, 7 L.Ed.2d 193; United States v. Pannell, 178 F.2d 98, 99, C.A.3. The trial judge gave a very fair and adequate instruction on credibility of witnesses and the theory of the defense. Chargois v. United States, 267 F.2d 410, 412, C.A.9. He is not required to give an instruction in the exact language submitted by counsel. Sugarman v. United States, 249 U.S. 182, 185, 39 S.Ct. 191, 63 L.Ed. 550; Holt v. United States, 218 U.S. 245, 253, 31 S.Ct. 2, 54 L.Ed. 1021; Davis v. United States, 226 F.2d 331, 336, C.A.6, cert. den. 350 U.S. 965, 76 S.Ct. 432, 100 L.Ed. 838, rehearing den. 351 U.S. 915, 76 S.Ct. 693, 100 L.Ed. 1449; Henderson v. United States, 218 F.2d 14, 18, 50 A.L.R.2d 754, C.A.6, cert. den. 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253 rehearing den. 349 U.S. 969, 75 S.Ct. 879, 99 L.Ed. 1290. There is no merit to this claim of error. The defense further claims that government counsel were guilty of misconduct, prejudicial to the defendant, in calling witness Irma Jean Smith when they knew that she would claim privilege against self incrimination under the Fifth Amendment to the Constitution of the United States. Counsel for the defendant told the court that he had been advised by the witness that she would “take the Fifth Amendment” if she were called to testify. He requested the court to conduct a separate hearing outside of the presence of the jury and to have the government make a record on the questions its counsel intended to ask. A" }, { "docid": "12430806", "title": "", "text": "in Jones, supra,, was applied, it was determined that no effective consent to a search had been granted. It has been held that one having occasional use of the premises, including a child, has no Fourth Amendment standing to object to a search with consent granted by the parent or owner or landlord. Rees v. Peyton, 341 F.2d 859 (4th Cir. 1965). To the same effect, it has been held that consent granted by a wife is binding upon her husband. Roberts v. United States, 332 F.2d 892 (8th Cir. 1964), cert. denied 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274 (1965). There are diverse rulings on the issue of the effectiveness of a search based upon consent granted by one other than the accused. We hold that in this case the consent granted by Ruth Kidd, lessee of the searched premises, was effective as to Leeper. One who has possession and control of the articles seized or the premises on which they were found may consent to a search which produces evidence incriminating someone else. United States v. Sferas, 210 F.2d 69 (7th Cir. 1954), cert. denied Skally v. United States, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086 (1954); United States v. Eldridge, 302 F.2d 463 (4th Cir. 1962). Kidd knew, or should have known, after speaking with Schupbach and before placing the call to Agent Miller granting consent to search, that she could be in legal jeopardy. Kidd had testified that when she phoned Agent Miller she told him that Burghart, Leeper and Roskam were then at her home and that approximately $10,000.00 in $100 counterfeit bills were in the home. She volunteered permission for search of the residence. On cross-examination she acknowledged that she placed the call to Miller and volunteered the search in order to avoid the risk of prosecution. Agent Miller testified that when he and other law enforcement officers entered the Kidd home they did so pursuant to the search warrant and the consent to search granted by Kidd. The record does not indicate that Agent Miller informed Kidd that he" }, { "docid": "23345378", "title": "", "text": "prepared by the arresting agents, and in that Long did not know what he was signing. See Weed v. United States, 340 F.2d 827, 829 (10 Cir. 1965). Judge Meredith’s implicit finding, however, that Long did consent and that his consent was freely and intelligently given finds adequate support in this record. There were no drawn guns as in the Weed case. Long not only consented orally but executed the written waiver. He conceded, upon questioning by the court, that he was aware that what he signed was a waiver permitting the search. He was present when his house was entered. It was he who unlocked the door with his own key. He was and has been cooperative with the agents. And at no time has he claimed that his consent was not voluntary. See Roberts v. United States, 332 F.2d 892, 897 (8 Cir. 1964), cert. denied 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274. If it be suggested that, because Long had given Castaldi a key to the house and Drummond and Castaldi were present in the house during some of the counterfeit operations, a joint possession and rights in the premises emerged, Long’s consent still was sufficient to validate the search. One having equal authority over premises may authorize a search of them. We have so held in Roberts v. United States, supra, pp. 896-897 of 332 F.2d, and in Maxwell v. Stephens, supra, pp. 336-337 of 348 F.2d See Burge v. United States, supra, p. 413 of 342 F.2d; Teasley v. United States, 292 F.2d 460, 464 (9 Cir. 1961); United States v. Sferas, 210 F.2d 69, 74 (7 Cir. 1954), cert. denied 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086. Items seized at the Long house were therefore properly admitted in evidence against Drummond and Castaldi. 3. Long’s garage. If no landlord-tenant relationship existed between Long and Castaldi with respect to the garage, we would readily conclude that the entry and search of the garage, as that of the house, was with Long’s oral consent and that Judge Meredith’s finding that this consent" }, { "docid": "22964131", "title": "", "text": "item, however, remains. To make the inspection, the agent went upon the residential premises of the defendant, without a warrant and without his consent. The District Judge admitted the evidence on the specific ground that the wife had consented to the inspection. A search to which an individual consents meets Fourth Amendment requirements, but the right to be free from an unreasonable search is personal. The Fourth Amendment protects people, not places. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). As long ago as 1930, we held that a wife is without authority to bind her absent husband by consenting to an unauthorized search, Cofer v. United States, 5 Cir., 1930, 37 F.2d 677, citing Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654. See, however, Roberts v. United States, 8 Cir., 1964, 332 F.2d 892, cert. denied 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274, in which it was held that a wife jointly owning the premises and over which she had control in the absence of her husband can consent to a search of the home. But see Holzhey v. United States, 5 Cir., 1955, 223 F.2d 823. See, also, United States v. Sferas, 7 Cir., 1954, 210 F.2d 69 cert. denied, Skally v. United States, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086, to the effect that where two persons have equal rights to use or occupation of premises, either may give consent to search. To like effect, Drummond v. United States, 8 Cir., 1965, 350 F.2d 983, cert. denied, 384 U.S. 944, 86 S.Ct. 1469, 16 L.Ed.2d 542. Since, in our view the inspection of the automobile at most was not an unreasonable search, and since the wife, in joint use and occupation of the premises, gave her consent to the officer to remain in the yard and make the inspection his presence there was not unlawful and did not vitiate the admissibility of what he later found. The appellant objected below and complains here that a true copy of the registration of" }, { "docid": "6778013", "title": "", "text": "(5th Cir.), cert, denied, 360 U.S. 920, 79 S.Ct. 1439, 3 L.Ed.2d 1535 (1959) ; United States v. Sferas, 210 F.2d 69 (7th Cir.), cert, denied, sub. nom. Skally v. United States, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086 (1954); Beck v. United States, 298 F.2d 622 (9th Cir.), cert, denied, 370 U.S. 919, 82 S.Ct. 1558, 8 L.Ed.2d 499 (1962); Cox v. General Elec. Co., 302 F.2d 389 (6th Cir. 1962); Bratcher v. United States, 149 F.2d 742 (4th Cir.), cert, denied, 325 U.S. 885, 65 S.Ct. 1580, 89 L.Ed. 2000 (1945). Smith v. United States, 112 F.2d 217 (D.C.Cir.), cert, denied, 311 U.S. 663, 61 S.Ct. 20, 85 L.Ed. 425 (1940), held it a matter of the judge’s discretion, to excuse prospective jurors who had played the numbers game within two years, in a prosecution for violating the lottery law, saying that “it makes no difference whether the release was for cause or favor.” See 28 U.S.O.A. § 1870 providing in part that “[a] 11 challenges for cause or favor * * * shall be determined by the court.” . Spells v. United States, supra; Bratcher v. United States, supra; United States v. Sferas, supra; Cox v. General Electric Co., supra. . The importance of employment as a source of possible bias was described by Mr. Justice Jackson in Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187 (1948), speaking of government employees: “So I reject as spurious any view that government employment differs from all other employment in creating no psychological pressure of dependency or interest in gaining favor, which might tend to predetermine issues in the interest of the party which has complete mastery over the juror’s ambition and position.” . The court determined in its lengthy and careful voir dire that a juror at one time had discussed with one of plaintiff’s attorneys a personal injury claim. No suit was brought, in fact he never heard anything further from the attorney about it. This was not disqualification as a matter of law and could have been treated as informational" }, { "docid": "9425377", "title": "", "text": "evidence to support the verdict, the evidence must be construed in the light most favorable to the government and in the light of all reasonable inferences which the jury may draw therefrom. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Although defendants introduced versions of the transactions in question different from those of the government, we are convinced that the jury was justified in accepting the government’s proof. There is substantial evidence to support the verdict as to Counts III and V. Defendants, on appeal, raise for the first time the defense of entrapment as a matter of law. It is uniform practice for appellate courts to refuse to consider alleged errors not raised in the trial court unless the result would lead to a miscarriage of justice. Ramirez v. United States, 294 F.2d 277 (9th Cir.1961); United States v. Sferas, 210 F.2d 69 (7th Cir.1954), cert. denied, Skally v. United States, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086. We are convinced that no injustice resulted from the failure of the trial court to rule that entrapment had been established as a matter of law. Entrapment as a matter of law is established only where undisputed testimony makes it patently clear that an otherwise innocent person was induced to commit the act complained of by the trickery, persuasion, or fraud of a government agent. Sorrells v. United States, 287 U. S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). We believe the surrounding circumstances brought out in the evidence support the conclusion that defendants would have sold the misbranded Millrue regardless of who the purchasers were, and the fact that government agents used a ruse to conceal their identity does not require a different conclusion. The issue of entrapment was properly left to the jury. We have examined the instructions given by the trial judge and find them to have correctly stated the issues and the law governing the ease. The instructions were not objected to at the trial and in the absence of substantial error capable of resulting in a miscarriage" }, { "docid": "7081045", "title": "", "text": "urged before the District Judge, Sartain v. United States, 303 F.2d 859, 862 [4] (C.A. 9, 1962), cert. den. 371 U.S. 894, 83 S.Ct. 194, 9 L.Ed.2d 127. The strength of the case has a bearing on the prejudicial error issue, Osborne v. United States, 351 F.2d 111, 118 [8-10] (C.A. 8, 1965); and if there was no direct evidence against the defendant which was untainted, and the corroboration of the informer was only minor in character, a special cautionary instruction is required. Orebo v. United States, supra; On Lee v. United States, supra, 343 U.S. at 756, 72 S.Ct. at 973, 96 L.Ed. at 1277 (headnote 12). “* * * All of this makes it important therefore to consider the Government’s case inescapably advanced through the story of the [informer] and to weigh it carefully to determine whether the testimony of the [informer] was both so critical and also so suspect that the jury needed the law’s traditional caveat as to its evaluation and use. * * * ” Williamson v. United States, 332 F.2d 123, 128 [3] (C.A. 4, 1964). The addicted informer Blassingame admitted under oath that he was spending an average of $40 or more weekly in June, 1963 to purchase narcotics for his own use, although he was unemployed at the time. However, he was then operating in his home an after-hours “good-time house”, dispensing illegally both beer and whiskey. In addition to his felony conviction, he admitted having engaged regularly in a multiplicity of confidence games. Obviously, the testimony of Mr. Blassingame was highly suspect, as well as being essential to Griffin’s conviction. It is a “* * * well recognized fact that a drug addict is inherently a perjurer where his own interests are concerned. * * * ” Fletcher v. United States, 81 U.S.App.D.C. 306, 158 F.2d 321, 322 [2] (1946). Except for two telephone calls which the informer made to narcotics agent Miller, and the delivery to the agent by Blassingame of a packet of heroin, Blassingame, who was paid $50 for his services by the Government, could easily have manufactured" }, { "docid": "4175634", "title": "", "text": "and the credibility of the witnesses was attacked, the .22 caliber pistol became highly relevant as tending to prove that the defendant could in fact have carried out the alleged threats. We cannot say that any possible prejudicial effect outweighed the probative value of the pistol under these circumstances. II. Defendant also alleges error in admission into evidence of the fruits of a search of his home made pursuant to his wife’s consent shortly after Stone’s arrest. Stone insists, first, that his wife could not legally give consent to such a search unless an “agency” relationship is established; and second, that even if a spouse’s consent were otherwise sufficient, the consent in this case was the product of coercion. The first part of this argument is without merit. In United States v. Sferas, 210 F.2d 69, 74 (7th Cir.), cert. denied, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086 (1954), this court held that “where two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either.” This holding is applicable here and the wife’s consent, unless given under coercion, is binding upon her husband. See also United States v. Johnson, 413 F.2d 1396, 1400 (5th Cir. 1969); Roberts v. United States, 332 F.2d 892, 896-897 (8th Cir.), cert. denied, 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274 (1964). The question of whether a consent is given voluntarily and without coercion is one of fact. Stone argues that two factors allegedly present in the instant case preclude a finding that the consent was freely given. Mrs. Stone executed the consent form giving F.B.I. agents authority to search the house approximately eight minutes after defendant’s arrest. There was some testimony that she was upset at the time but the record does not indicate that she was any more disturbed than any other person would be likely to be at the sudden intrusion of police officials under these circumstances. To hold that the mere condition of being “upset” by the presence at one’s" }, { "docid": "22861660", "title": "", "text": "influence jurors. Informing the Government of the existence of such evidence did not interfere with the rights of Appellants to the effective assistance of counsel. They had no lawful right to engage in such conduct, either with or without the assistance of counsel. There was no evidence here that counsel knew anything about the unlawful endeavors. Prior Inconsistent Statements of Witnesses The fact that a witness may have made prior sworn or unsworn statements, inconsistent with his testimony at the trial, does not require the exclusion of his testimony. In the present case witnesses were cross-examined extensively by the defense, not only concerning alleged prior inconsistent statements but also concerning their motives. In particular Partin was cross-examined at great length concerning many incidents which took place during his life, including his taking the Fifth Amendment before the Grand Jury, his criminal record, and the pending untried charges against him. The jury was fully informed as to his record. The credibility of the witnesses was for the jury to determine. United States v. Aviles, 274 F.2d 179 (C.A. 2, 1960) cert. denied 362 U.S. 974, 80 S.Ct. 1057, 4 L.Ed.2d 1009, 362 U.S. 982, 80 S.Ct. 1068, 4 L.Ed.2d 1015, rehearing denied 363 U.S. 858, 80 S.Ct. 1610, 4 L.Ed. 2d 1739; United States v. Reina, 242 F.2d 302, 307 (C.A. 2, 1957); Henderson v. United States, 218 F.2d 14, 17, 50 A. L.R.2d 754 (C.A. 6, 1955) cert. denied 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253, rehearing denied 349 U.S. 969, 75 S.Ct. 879, 99 L.Ed. 1290. The jury could also consider the alleged threats to a witness. Enriquez v. United States, 314 F.2d 703 (C.A. 9, 1963); Nichols v. United States, 276 F.2d 147, 148 (C.A. 6, 1960) cert. denied 364 U.S. 815, 81 S.Ct. 45, 5 L.Ed.2d 47. Surveillance Appellants contend that they were denied the effective assistance of counsel because of surveillance conducted by the Government during the course of the trial. The trouble is that the claim is not supported by the evidence. The trial judge conducted a hearing on this matter at the" }, { "docid": "22861710", "title": "", "text": "the Court to refuse to give a specific cautionary instruction with respect to informers. They claim that Partin was a paid informer and that the Court should have instructed the jury that his testimony was to be received with caution. There was no evidence that Partin received money from the Government except for expenses which he incurred some time after the trial. Whether a special cautionary instruction should have been given on informers was within the discretion of the Court, to be exercised in accordance with the particular facts and circumstances of each case. Siglar v. United States, 208 F.2d 865 (C.A. 5, 1954) cert. denied 347 U.S. 991, 74 S.Ct. 854, 98 L.Ed. 1125. The Court did give a cautionary instruction although not in the language requested, and it did not mention informers specifically. It was a comprehensive charge on credibility, which covered all of the elements to be considered in weighing the testimony of the witnesses and parties in this case- He told the jury to— “ * * * scrutinize carefully the testimony given and the circumstances under which each witness has testified and every matter in evidence which tends to indicate whether the witness is worthy of belief. Consider each witness’ intelligence, his motives, state of mind, his demeanor and manner while on the witness stand. Consider also any relation each witness may bear to either side of the case; the manner in which each witness might be affected by the verdict; and the extent to which, if at all, each witness is either supported or contradicted by other evidence.” He also instructed the jury on impeachment, false testimony, character evidence, conflicting testimony, per-jurors, felons and self interest. The Court was not required to give the instruction in the exact language requested by the defense. While it would have been better practice for the Court to have given a separate instruction with particular reference to the testimony of an informer, the failure to do so was not reversible error. United States v. Ball, 344 F.2d 925 (C.A. 6, 1965). We do not consider this as a" }, { "docid": "4479007", "title": "", "text": "incriminating evidence, observed after a warrantless entry into the accused’s home with the consent of his wife. The court supported its ruling by citing cases which had held that, under the facts there involved, a wife’s consent was a valid substitute for a search warrant. Roberts v. United States, 332 F.2d 892, 895-898 (8th Cir. 1964) cert. denied 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274; Stein v. United States, 166 F.2d 851, 855 (9th Cir. 1948) cert. denied 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768. We think it right to add that the Supreme Court in Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 65 L.Ed. 654 (1921) specifically declined to rule on the question here involved holding there that the wife’s consent had been coerced. We hold that in the factual context of this case the wife’s consent made lawful the seizure of the guns and their use as evidence. In the case at bar it is uncontradieted that the search for the guns was made only at the wife’s request, and it is also clear while she was temporarily residing with her parents, she nevertheless maintained the apartment as her primary home. It would be incongruous to hold that a wife, who certainly has the rights of use and occupation of the premises she shares with her husband, cannot consent to a search of those premises. We agree with the Eighth Circuit . . . the right of the wife ... to enter the home which was in her possession and control cannot be seriously questioned and that her invitation to and authorization to the officers to enter and search was an outgrowth thereof. It is not a question agency, for a wife should not be held to have authority to waive her husband’s constitutional rights. This is a question of the wife’s own rights to authorize entry into the premises where she lives and of which she had control. Roberts v. United States, supra, 332 F.2d at 896. Our holding that a wife can consent to a search of the" }, { "docid": "9747300", "title": "", "text": "PER CURIAM. The defendant was found guilty by a jury of the illegal sale of nontaxpaid whiskey and received a sentence of five years. We find no merit in his contention that the District Judge erred in refusing to charge the jury on the law of entrapment. United States v. Gosser, 339 F.2d 102, C.A. 6th; Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. See also: Lopez v. United States, 373 U.S. 427, 436, 83 S.Ct. 1381, 10 L.Ed.2d 462. The defendant contends that the District Judge erred in overruling his motion to suppress evidence and in admitting in evidence the testimony of a government agent and an informer that they saw twenty-five cases of whiskey stacked in the kitchen in defendant’s house on the night of April 9, 1963. It is claimed that the entry into the house in the absence of the defendant without a search warrant constituted an illegal search and seizure. The agent and the informer were making a delivery of glass fruit jars to the defendant in accordance with arrangements between them. The defendant’s wife made no objection to the entry of the agent and the informer. Under the circumstances, the entry into the house was not illegal. Roberts v. United States, 332 F.2d 892, 895, 896, C.A. 8th; Stein v. United States, 166 F.2d 851, 855, C.A. 9th, cert. denied, 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768; United States v. Sferas, 210 F.2d 69, 74, C.A. 7th, cert. denied, sub nom. Skally v. United States, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086; United States v. Pugliese, 153 F.2d 497, 499, C.A. 2nd. The whiskey which the agent saw in the house after entry was fully disclosed to visual observation without the necessity of searching for it and did not constitute an illegal search. United States v. Williams, 314 F.2d 795, 798, C.A. 6th; United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 71 L.Ed. 1202. The defendant requested the District Judge to instruct the jury that the motives of an informer should be" }, { "docid": "6015213", "title": "", "text": "support a search that turns up evidence of an accused’s criminal conduct. See Maxwell v. Stephens, 348 F.2d 325, 336-337 (8th Cir. 1965) cert, denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353, and the extensive discussion and citation of authorities relevant to the subject we consider. In our case of United States v. Ball, 344 F.2d 925, 926-27 (6 Cir. 1965), we approved of testimony given by government witnesses regarding incriminating evidence, observed after a warrantless entry into the accused’s home with the consent of his wife. We supported our ruling by citing cases which had held that, under the facts there involved, a wife’s consent was a valid substitute for a search warrant. See Roberts v. United States, 332 F.2d 892, 895-898 (8th Cir. 1964), cert, denied, 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274; Stein v. United States, 166 F.2d 851, 855 (9th Cir. 1948), cert, denied, 334 U.S. 844, 68 S.Ct. 1512, 92 L. Ed. 1768. We think it right to add that the Supreme Court in Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 65 L.Ed. 654 (1921), specifically declined to rule on the question here involved, holding that there the wife’s consent had been coerced. We hold that in the factual context of this case the wife’s consent made lawful the seizure of the suits and their use as evidence. ii) The Search Was Reasonable. We are also of the view that in the total context of this case it cannot be said that what was done here could be condemned by the Fourth Amendment’s proscription against “unreasonable searches and seizures.” The officers in this case had been proceeding with meticulous observance of Alloway’s rights — instead of searching his trailer without a warrant at the time of his arrest, as presumably they could have, they first obtained a search warrant. While searching for the objects described in that warrant, they discovered the suits in question, both dark and one with a Bond Clothing Company label. We think it would have been unreasonable, and perhaps dereliction of duty on" } ]

[ { "docid": "22664578", "title": "", "text": "agency to make the basic asylum eligibility decision .... In such circumstances a ‘judicial judgment cannot be made to do service for an administrative judgment.’ ”) (quoting SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943)); see also Qiu v. Ashcroft, 329 F.3d 140, 157 (2d Cir.2003) (remanding case for further consideration where BIA misapplied applicable legal principles to the evidence); Alvarado-Carillo v. INS, 251 F.3d 44, 46-47 (2d Cir.2001) (same). CONCLUSION For the foregoing reasons, we grant the petition for review and remand the case to the BIA for further proceedings consistent with this opinion. . Zhang has abandoned any challenge to the IJ's denial of his claim for withholding of removal under the United Nations Convention Against Torture and its implementing regulations, see 8 C.F.R. § 208.16(c) (2001), by failing to discuss this claim anywhere in his brief. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.’’). . As of January 1, 1998, 9000 Yuan RMB was equivalent to roughly $1,087 in U.S. dollars. . This regulation has since been recodified as amended at 8 C.F.R. § 1003.1(e)(4). . Section 1158 was substantially amended by the Real ID Act of 2005, Pub. L. No. 109-13, Div. B., tit. I § 101(a), 119 Stat. 231, 302-03 (May 11, 2005). This and future references to § 1158 refer to the statute as it existed at the time of the IJ’s decision. . Although the statutory definition of a refugee speaks disjunctively of “persecution or a well-founded fear of persecution,” in order to establish asylum eligibility, the applicant must demonstrate a well-founded fear of future persecution. Islami, 412 F.3d at 395 n. 3. The applicant may seek to prove well-founded fear in two ways. One is to demonstrate that he or she has suffered past persecution, in which case a rebuttable presumption arises of a well-founded fear of future persecution. Ramsameachire, 357 F.3d at 178. The applicant may also demonstrate a well-founded fear of future" } ]

[ { "docid": "22643747", "title": "", "text": "established a well-grounded fear of persecution. The adverse credibility finding with respect to her asylum claim necessarily precludes her claim for withholding of removal, see Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003), and, because Chen has not pursued on appeal her claim for relief under the CAT, that claim is forfeited, see Yueq-ing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005). Conclusion Accordingly, the petition for review is denied. Having completed our review, any stay of removal that the Court previously granted in this petition is vacated, and any pending motion for a stay of removal in this petition is denied as moot. Any pending request for oral argument in this petition is denied in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1). . Under the Court’s recently adopted Non-Argument Calendar procedure, four panels are each considering 12 petitions involving denial of an asylum claim every week, and one and sometimes two other panels are hearing argument in such cases on the Regular Argument Calendar." }, { "docid": "22675818", "title": "", "text": "reasoning in which he blended together factors that relate to credibility with factors that do not. In short, the IJ’s reasoning, viewed in the light of his application of a heightened standard, is too obscure to permit meaningful judicial review. See Secaida-Rosales, 331 F.3d at 305-06. We therefore cannot confidently predict what the IJ would do on remand. See Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 158 (2d Cir.2006) (stating that we may affirm a decision of the BIA where we can confidently predict that, absent any errors we have identified, the IJ would reach the same decision on remand). Finally, respondent argues that the incidents to which the Karajs testified are not persecution as a matter of law. We, however, must review the findings the IJ actually made and not seek out bases for denying review on which the IJ did not rely. See Zhi Wei Pang, 448 F.3d at 107. The IJ did not find that, even crediting the Karajs’ testimony, they had not established past persecution or a well-founded fear of future persecution. Instead the IJ found that the Karaj s had not established that they would face persecution if returned to Albania. Because the IJ did not determine whether petitioners met the appropriate standard and did not clearly determine that petitioners’ testimony lacked credibility, we must remand for appropriate findings on both issues. III. Withholding of removal and CAT relief Although the Karajs asked in their prayer for relief that the BIA reverse the IJ’s denial of withholding of removal, they made no argument relevant to this claim. Further, the Karaj s did not seek reversal of the IJ’s denial of their CAT claim. The failure to seek review of the CAT claim deprives us of jurisdiction. See Beharry v. Ashcroft, 329 F.3d 51, 59 (2d Cir.2003) (holding that, assuming statutory exhaustion requirement applied to asylum claims raised in a habeas petition, court lacked jurisdiction to consider alien’s entitlement to a form of relief that he did not request in administrative proceedings). Although the Karajs asked the BIA to reverse the IJ’s" }, { "docid": "22142360", "title": "", "text": "anything to help us.” These allegations are reinforced by Pavlova’s submission of a number of articles from newspapers and other sources that report discrimination by Russian authorities against “foreign” sects and in favor of the Russian Orthodox Church. Because Pavlova has alleged that the Russian authorities were unwilling to control RNU, we cannot conclude that an IJ would not have found in her favor on this point had the correct legal standard been applied. Accordingly, we cannot affirm this case on the basis of the futility of a remand because the IJ’s alternative ground for denying relief is legally erroneous. Cf. Xiao Ji Chen, 434 F.3d at 161 (noting that a petition challenging a rejection of an asylum claim could be denied despite errors committed by the IJ where, inter alia, “the IJ explicitly relies on a valid alternative ground for denying relief that is not tainted by error” (citing Cao He Lin, 428 F.3d at 401-02)). II. For the foregoing reasons, Pavlova’s petition for review is GRANTED. We VACATE the BIA’s order and ReMand the case to the BIA with instructions to remand to an IJ for further proceedings consistent with this opinion. Because the IJ’s ruling on Pavlova’s application for withholding of removal under the INA and the CAT was also based, at least in part, upon the adverse credibility determination, we vacate and remand with respect to these two claims as well. While we recognize that “assignment of an IJ is within the province of the Attorney General,” Qun Wang v. Attorney Gen. of the United States, 423 F.3d 260, 271 (3d Cir.2005) (internal quotation marks and citation omitted), we strongly suggest that Pavlova’s case be remanded to an IJ other than the IJ who handled her case originally, see id. In light of our disposition of Pavlova’s petition for review, we need not address Pavlova’s due process claims relating to the IJ’s conduct during her removal hearing and the BIA streamlining procedures. See generally Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 158-59 (2d Cir.2004) (per curiam) (describing due process implications of streamlining" }, { "docid": "22457677", "title": "", "text": "government has, in its brief, identified other purported inconsistencies in the record that the IJ did not mention in her ruling. “[0]ur deferential review of the IJ’s factual findings does not require us to seek alternative grounds for affirmance where the grounds set forth by the IJ are insufficient.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 340 (2d Cir.2006). Instead, we will limit our review of the IJ’s decision to the reasons she actually articulates and ordinarily will not affirm based on evidence that may appear in the record but that was not relied on in the IJ’s decision because we cannot know how the IJ would have viewed evidence she did not analyze. To assume a hypothetical basis for’ the IJ’s determination, even one based in the record, would usurp her role. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 400 (2d Cir.2005) (internal citations omitted). We thus decline to consider any purported inconsistencies in the record upon which the IJ did not rely in reaching her determination. Three of the four reasons identified by the IJ in support of her ruling were erroneous, and the fourth reason is inadequately explained. Because we cannot predict that the IJ would reach the same decision despite the errors that were made, see Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 162 (2d Cir.2006), remand is appropriate in this case. CONCLUSION For the foregoing reasons, we Grant the petition for review and Remand the case to the BIA with instructions to Remand to the IJ for further proceedings consistent with this opinion. . Although Lin initially applied for relief under the CAT, she did not appeal the denial of that claim to the BIA and has not raised that claim on this appeal. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir. 2005) (noting that petitioner had waived his right to challenge the IJ's denial of his CAT claim by failing to discuss that claim in his appellate brief)." }, { "docid": "22663626", "title": "", "text": "Department was error, inasmuch as the IJ failed to “ ‘consider ... any contrary or countervailing evidence’ ” provided by the applicant, and every other ground for the IJ’s adverse credibility finding was erroneous) (internal quotation marks omitted); Tian-Yong Chen, 359 F.3d at 128, 130 (instructing immigration court to consider on remand “any contrary or countervailing evidence ... as well as the particular circumstances of the applicant’s case,” in addition to the State Department’s country report, where the IJ and BIA had erroneously “ignor[ed] a significant aspect of [petitioner’s] testimony”). Accordingly, the IJ properly considered the inconsistency between petitioner’s statements and the country report as part of his overall determination that petitioner’s account was not credible. Because we find that there is substantial evidence supporting the IJ’s adverse credibility determination and it is clear that the same decision would be made on remand, and because petitioner has not shown that it is more likely than not that she would be persecuted or tortured were she returned to China, we uphold the IJ’s determination, affirmed by the BIA, that petitioner has failed to make the requisite showings to qualify for withholding of removal under either the INA or the CAT. CONCLUSION For the reasons stated above, we Dismiss the petition for review of the denial of asylum for lack of jurisdiction. We Deny the remainder of the petition because we conclude that the IJ’s decision DENring petitioner’s application for withholding of removal is supported by substantial evidence and it is clear that the same decision would be made were we to remand. Apart from our analysis in Part I and notes 1 and 21 below, the remainder of this opinion— in particular, the analysis set forth under the heading “II. Withholding of Removal,’’ see post at 22-37 — is not materially changed from our opinion of January 6, 2006. Accordingly, any decisions of our Court that have applied the analysis set forth in Part II of our prior opinion in this case, see Xiao Ji Chen, 434 F.3d at 155-65, are not altered or affected in any way by our amendments" }, { "docid": "22626186", "title": "", "text": "Id. In these circumstances, we hold that the BIA did not abuse its discretion in finding the evidence insufficiently material to warrant a remand. Finally, Ye challenges the IJ’s denial of CAT relief, having failed to do so before the BIA. While ordinarily, under 8 U.S.C. § 1252(d)(1), an alien may not raise before this Court an issue or category of relief not raised before the BIA, see Gill v. INS, 420 F.3d 82, 86 (2d Cir.2005); Foster v. INS, 376 F.3d 75, 78 (2d Cir.2004), the BIA addressed Ye’s CAT claim despite this oversight. Accordingly, Ye’s failure to raise the CAT claim himself is excused, and we have jurisdiction to address it now. See Waldron v. INS, 17 F.3d 511, 515 n. 7 (2d Cir.1994). The BIA found that Ye failed to present sufficient evidence that he would be tortured in China, for any reason. On appeal, Ye argues that the BIA thus “ignored the obvious record of the proceeding and relied on the IJ’s adverse credibility determination” in order to deny his CAT claim. Pet’r’s Br. at 55. An IJ may properly deny a CAT claim if he or she finds adverse credibility with respect to facts that form the “only potentially valid basis” for the CAT claim. See Xue Hong Yang, 426 F.3d at 523; see also Xiao Ji Chen v. DOJ, 434 F.3d 144, 163 (2d Cir.2006) (“[W]here ... the applicant relies largely on testimonial evidence to establish [his] CAT claim, and does not independently establish a probability of torture apart from [his] stated fear, an adverse credibility finding regarding that testimonial evidence may provide a sufficient basis for denial of CAT relief.”). Here, the IJ and BIA both found adverse credibility with respect to the very facts which Ye now uses to support his fear of torture: his November 1993 beating and detention. See Pet’r’s Br. at 54-56. Moreover, an IJ may properly deny a claim for CAT relief when the applicant has failed to demonstrate that he is “more likely than not” to be tortured upon his removal from the United States. See Xue" }, { "docid": "23108435", "title": "", "text": "remand is not futile. See Xiao Ji Chen, 471 F.3d at 335; Cao He Lin, 428 F.3d at 395. Accordingly, we GraNt the petition for review, VaCate the decision of the BIA to the extent that it denies Niang’s claims for withholding of removal and CAT relief, and Remand the case for further proceedings consistent with this opinion. Petitioner’s motion for a- stay of removal pending the outcome of this appeal is Dismissed as moot. . In addition to the two identity documents, the IJ admitted to the record the State Department's Country Reports on Mauritania for 2000 and 2002, and other sources on conditions in Mauritania. . Niang does not challenge the agency’s finding that his asylum claim was untimely filed. . Petitioner contends that the IJ failed even to make an adverse credibility finding, but it is tolerably clear that the IJ relied on Niang’s statements about the documents to find his testimony incredible as a whole. . Indeed, the IJ himself accepted that \"[t]he kind of persecution [Niang] suffer[ed], according to his testimony, is very strong....\" . Neither the IJ nor the BIA addressed Niang’s claim under the CAT separately from his claim for withholding. And though petitioner has clearly not abandoned that claim, neither party has directed specific attention to it in its submissions to this Court. In these circumstances, we remand the CAT claim along with the withholding claim. See, e.g., Biao Yang v. Gonzales, 496 F.3d 268, 272 (2d Cir.2007) (\"[I]t is for the agency to make eligibility determinations in the first instance. Because ... we remand this case to the agency, the agency should also address [petitioner’s] eligibility for CAT relief on remand.” (citation omitted))." }, { "docid": "22854584", "title": "", "text": "prison is an easy fact to verify, but, if it is not, the report at least must explain why verification is not possible. In addition to the other deficiencies noted above, the Consular Report contains multiple hearsay statements that further degrade its reliability. Hearsay is admissible in removal hearings, not because it is reliable, but because the standard for admission of evidence is lower than in a traditional civil proceeding. See Felzcerek, 75 F.3d at 115. Here, the Steiner Letter is certainly hearsay as it was offered to prove the Certificate of Release is counterfeit. Moreover, the source of the information, given the Prison Bureau’s motivation to be less than candid on the subject, is highly unreliable, and the lack of any corroborating detail from U.S. officials indicate a severe lack of trustworthiness. Cf. Fed.R.Evid. 803(8)(c). The Liu Report, is even more unreliable than the Steiner Letter, as it contains multiple levels of hearsay that exacerbate its myriad reliability problems. For all of these reasons, we hold that the Consular Report is inherently unreliable and cannot support the BIA’s adverse credibility finding. II. Withholding of Removal and CAT Claims As the BIA’s reversal of the IJ’s grant of withholding of removal is predicated on the erroneous adverse credibility finding, we remand Lin’s withholding of removal for reconsideration by the BIA. See Pavlova v. INS, 441 F.3d 82, 92 (2d Cir.2006) (vacating withholding and CAT determinations that were premised on the same erroneous adverse credibility finding as the asylum claim). Lin argues in his brief that he is entitled to relief under the Convention Against Torture (CAT). Lin has never before requested this type of relief, and therefore, he has failed to exhaust his ad ministrative remedies. See Gill v. INS, 420 F.3d 82, 86 (2d Cir.2005) CONCLUSION For the foregoing reasons, we will Grant the petition for review, and Remand this case to the BIA for further proceedings consistent with this opinion. The stay of removal that the Court granted in this petition is Vacated. . The Homeland Security Act of 2002, transferred the functions of the \"INS” to the" }, { "docid": "22792954", "title": "", "text": "game” and remand is not required where it “would be an idle and useless formality.”); Mass. Trs. of E. Gas & Fuel Assocs. v. United States, 377 U.S. 235, 246-48, 84 S.Ct. 1236, 12 L.Ed.2d 268 (1964) (same); cf. Ucelo-Gomez v. Gonzales, 464 F.3d 163, 170 (2d Cir.2006) (per curiam) (holding no remand necessary where a court “can rule now with assured confidence that petitioners are or are not part of a particular social group” under the INA). Hoxhallari — like many Albanians — may well have suffered past persecution based on political opinion at the hand of the Hoxha regime; and he may have a subjective fear of future persecution based on his Democratic Party affiliation. But there is no doubt that there has been a fundamental change in the political structure and government of Albania, beginning in 1990. While Democrats have not been continuously in power, the IJ’s perfunctory finding of changed conditions in Albania is adequate. We can therefore state with assured confidence that remand would be futile and an unwise use of judicial and administrative resources. C. CAT Claim Hoxhallari failed to raise his CAT claim before the BIA. Because he did not exhaust his administrative remedies before the BIA, this Court lacks jurisdiction to address this category of relief. See 8 U.S.C. § 1252(d); Gill v. INS, 420 F.3d 82, 86 (2d Cir.2005). CONCLUSION For the foregoing reasons, the petition is DENIED. Because we have completed our review, any outstanding motion for a stay of removal is DENIED as moot. . Hoxhallari conceded as much at his hearing: Q Now, earlier you indicated that your father was responsible for creating the first branch of the Democratic Party in your village. Is that true? A Yes. Q Now, have the police sought to arrest your father or in anyway detain him since your departure from Albania as result of his political activities? A No, no. . The 2001 State Department Report makes clear that Albania is headed in a democratic direction: Albania is a republic with a multiparty parliament, a Prime Minister, and a President, elected" }, { "docid": "23108434", "title": "", "text": "of Communist regimes in the Balkans), and [ii] we will not assume that the agency suffers from such ignorance.” Xiao Xing Ni v. Gonzales, 494 F.3d 260, 272 (2d Cir.2007). Clearly, no “indisputable historical event” supports the BIA’s decision, where the IJ, relying on the very same record evidence, reached the opposite conclusion, and explained in detail his reasons for doing so. Since Hoxhallari does not apply, the normal requirements for a valid factual determination remain in force. The agency must provide a reasoned basis for its decision, Beskovic v. Gonzales, 467 F.3d 223, 227 (2d Cir.2006), and must premise that decision on substantial evidence in the record, Tambadou v. Gonzales, 446 F.3d 298, 303-04 (2d Cir.2006). Neither of these requirements is satisfied by a bald assertion that conditions in Mauritania have “improved dramatically.” Conclusion We have identified flaws that go to the heart of the agency’s decision to deny Niang’s application. We cannot predict with confidence that, in the absence of these errors, the agency would reach the same conclusion, and, as a result, remand is not futile. See Xiao Ji Chen, 471 F.3d at 335; Cao He Lin, 428 F.3d at 395. Accordingly, we GraNt the petition for review, VaCate the decision of the BIA to the extent that it denies Niang’s claims for withholding of removal and CAT relief, and Remand the case for further proceedings consistent with this opinion. Petitioner’s motion for a- stay of removal pending the outcome of this appeal is Dismissed as moot. . In addition to the two identity documents, the IJ admitted to the record the State Department's Country Reports on Mauritania for 2000 and 2002, and other sources on conditions in Mauritania. . Niang does not challenge the agency’s finding that his asylum claim was untimely filed. . Petitioner contends that the IJ failed even to make an adverse credibility finding, but it is tolerably clear that the IJ relied on Niang’s statements about the documents to find his testimony incredible as a whole. . Indeed, the IJ himself accepted that \"[t]he kind of persecution [Niang] suffer[ed], according to his" }, { "docid": "22422949", "title": "", "text": "for CAT relief. There is, therefore, no basis for reopening. AR at 2. Thus, on the motion for reconsideration, the BIA reviewed the entire record submitted by Alam, recognized its prior error in mechanically applying the numerical limits on motions to reopen, addressed on the merits his claim that the changed-country-conditions exception applied, and rejected it on the merits. The BIA’s finding makes clear that it has assessed the evidence behind Alam’s CAT claim and found that to be an insufficient ground for asylum as well. Because the BIA has articulated legally proper and sufficient reasoning for denying Alam’s motion to reopen, albeit in the context of deciding his motion to reconsider, remand would be pointless “because it is clear that the agency would adhere to its prior decision in the absence of error.” Xiao Ji Chen, 434 F.3d 144, 2006 WL 27427, at *10 (citations omitted). CONCLUSION For the foregoing reason, the petition for review is Denied. Having completed our review, any stay of removal that the Court previously granted in this petition is Vacated, and any pending motion for stay of removal in this petition is Denied as moot. Any pending request for oral argument in this petition is Denied in accordance with Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34(d)(1)." }, { "docid": "22702491", "title": "", "text": "she did not obtain a marriage certificate until 1994 because she was too young to get one at the time of her marriage. . Lin's husband was in the United States at the time of her hearing. .Lin raises a claim of persecution based on \"imputed political opinion\" for the first time in her petition to our Court, arguing that she \"faces a clear probability of persecution based on her politically motivated, illegal departure from China.\" Petr.'s Br. at 39. Because Lin failed to raise any such argument before either the IJ or the BIA, she has failed to exhaust her administrative remedies within the meaning of 8 U.S.C. § 1252(d)(1). Accordingly, we do not consider that claim on appeal. See Cervantes-Ascencio v. INS, 326 F.3d 83, 87 (2d Cir.2003) (per curiam). In her petition for review, Lin also challenges the IJ's denial of her claim for CAT relief. Although Lin presented this claim before the IJ, she failed to do so on her direct appeal to the BIA, instead challenging only the IJ's denial of her claim for asylum of withholding of removal under the INA. Accordingly, because Lin failed to exhaust her CAT claim before the BIA, we deem it waived. See Kambolli v. Gonzales, 449 F.3d 454 (2d Cir. May 26, 2006), 2006 U.S.App. LEXIS 13143, at *8 (per curiam). . See 8 U.S.C. § 1231(b)(3)(B) (enumerating the statutory exceptions to mandatory withholding where the Attorney General determines that the alien has persecuted others, has committed certain serious crimes, or poses a danger to national security). . Where, as here, the BIA summarily affirms an IJ's decision, we review the IJ's decision directly as the final agency determination. Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). . We note one important difference in the factual postures of Cao He Lin and Xiao Ji Chen that may be relevant to future cases. As indicated above, our review in Xiao Ji Chen involved factfinding in a withholding of removal context, whereas Cao He Lin primarily involved factfinding in an asylum context. See Xiao Ji Chen, 434" }, { "docid": "22643746", "title": "", "text": "v. Ives Laboratories, Inc., 456 U.S. 844, 855, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982) (internal quotation marks omitted). We do not fashion legally binding sub-rules that purport to govern determination of when that generalized standard is met. In the pending case, the IJ supported his finding that Chen’s testimony lacked credibility in part by pointing to two claims that he considered implausible. First, he had difficulty believing that the authorities, lacking Chen’s address, could quickly locate her in a city of one million people just by looking in a neighborhood where young people live. Second, he had difficulty believing that she could escape from detention just because her jailors were not paying attention. We think it entirely reasonable for the IJ to have considered these claims implausible without further explanation and to have relied on them, along with her demeanor and inconsistencies in her testimony, in making the ultimate finding that she was not a credible witness. We need not consider the IJ’s alternative ground that, even if Chen was credible, she had not established a well-grounded fear of persecution. The adverse credibility finding with respect to her asylum claim necessarily precludes her claim for withholding of removal, see Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003), and, because Chen has not pursued on appeal her claim for relief under the CAT, that claim is forfeited, see Yueq-ing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005). Conclusion Accordingly, the petition for review is denied. Having completed our review, any stay of removal that the Court previously granted in this petition is vacated, and any pending motion for a stay of removal in this petition is denied as moot. Any pending request for oral argument in this petition is denied in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1). . Under the Court’s recently adopted Non-Argument Calendar procedure, four panels are each considering 12 petitions involving denial of an asylum claim every week, and one and sometimes two other panels are hearing argument in such cases on the" }, { "docid": "22702490", "title": "", "text": "precise calipers to all [credibility] findings so that any particular finding would be viewed by any three of the 23 judges of this Court as either sustainable or not sustainable.” Ming Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir.2006). The appropriate course, as always, is to do what judges do best — to decide one case at a time. We Grant the petition for review as it relates to Lin’s claim for withholding of removal. We dismiss for want of jurisdiction Lin’s challenge to the IJ’s determination that she offered no credible evidence as to her date of entry. As to Lin’s due process claim, the petition for review is Denied. We Vacate the BIA’s order of removal and Remand the case to the agency for reconsideration of Lin’s claim for withholding under the INA. Having completed our review, any stay of removal that the Court previously granted in this petition is vacated, and any pending motion for a stay of removal in this petition is denied as moot. . Lin testified that she did not obtain a marriage certificate until 1994 because she was too young to get one at the time of her marriage. . Lin's husband was in the United States at the time of her hearing. .Lin raises a claim of persecution based on \"imputed political opinion\" for the first time in her petition to our Court, arguing that she \"faces a clear probability of persecution based on her politically motivated, illegal departure from China.\" Petr.'s Br. at 39. Because Lin failed to raise any such argument before either the IJ or the BIA, she has failed to exhaust her administrative remedies within the meaning of 8 U.S.C. § 1252(d)(1). Accordingly, we do not consider that claim on appeal. See Cervantes-Ascencio v. INS, 326 F.3d 83, 87 (2d Cir.2003) (per curiam). In her petition for review, Lin also challenges the IJ's denial of her claim for CAT relief. Although Lin presented this claim before the IJ, she failed to do so on her direct appeal to the BIA, instead challenging only the IJ's denial" }, { "docid": "8019592", "title": "", "text": "likelihood of being overturned on appeal. Accordingly, we cannot say the BIA abused its discretion in upholding the IJ’s denial of a further continuance in the case before us. Petitioner also argues to this Court that the BIA erred in failing to adjudicate the separate, but co-pending 1-130 appeal prior to deciding the continuance appeal that is the subject of the instant petition for review. We decline to reach this issue here, however, as it was not raised before the agency. At no time did Osorio-Pedre-ros request that the BIA consolidate the two cases, nor did he argue to the BIA that it should decide the 1-130 appeal before considering the appeal of the denial of the continuance. Accordingly, the issue is waived. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 123 (2d Cir.2007), reh’g denied 489 F.3d 126, 127 (2d Cir.2007). For the foregoing reasons, the petition for review is Denied. Having completed our review, any stay of removal that the Court previously granted in this petition is VaCated, and any pending motion for a stay of removal in this petition is Dismissed as moot. . The IJ also denied voluntary departure, a decision which the petitioner has not appealed. . In front of the BIA, Osorio-Pedreros argued that his ability to point out the errors in the District Director’s decision was hindered by the agency’s failure to provide transcripts of the Stokes interview despite his request for them. We need not consider here, however, whether the agency's failure to provide transcripts of the Stokes interview should excuse Osorio-Pedreros' lack of argument because Osorio-Pedreros has not renewed this line of argument to us. Accordingly, it has been abandoned. Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1 (2d Cir.2005). In any event, the BIA was probably correct that the detailed summary of the interview to which Osorio-Pedreros did have access should have enabled the petitioner to at least make some arguments as to why the Director’s conclusion was erroneous. . Osorio-Pedreros has also failed to make any showing to this court that would substantiate his" }, { "docid": "22434425", "title": "", "text": "the IJ had given valid, alternative grounds for denying relief, then we could deny review, confident that the identified errors were not responsible for the IJ’s outcome. See Cao He Lin, 428 F.3d at 401. We might have similar confidence that error was not a determining factor in the result if the IJ’s missteps were few and minor, relative to a large number of valid bases for an adverse credibility finding. See Xiao Ji Chen, 434 F.3d at 158-60 (finding that the large number of unimpeachable factual findings, relative to IJ’s “occasional ] lapses” into speculation, give confidence that the same decision would be reached in the absence of the noted deficiencies); see also Cao He Lin, 428 F.3d at 402 (“[R]emand may not be required where the IJ or BIA’s reliance on an erroneous aspect of its reasoning is so tangential that there is no realistic possibility that the outcome would be different on remand.”). Here, however, there is little besides error in the IJ’s decision. Again, the IJ correctly noted that Li’s testimony regarding Dr. Lau was inconsistent. But no other aspect of his credibility finding is entirely beyond reproach. Giv en the number of errors and the paucity of valid findings, we are in no position to predict with confidence what the outcome of an error-free proceeding would have been. We must, therefore, remand to the BIA. III. CONCLUSION The petition for review is GRANTED. The decision of the BIA is VACATED, and the case REMANDED to the BIA for further proceedings consistent with this opinion. . There is also a vestigial Convention Against Torture (\"CAT”) claim in Li's brief: It is presented in the \"Statement of the Issues” section, but never mentioned again. This claim was not made in the administrative proceedings below. As the INA requires petitioners to raise claims to the BIA to preserve them for judicial review, see 8 U.S.C. § 1252(d)(1); Cervantes-Ascencio v. INS, 326 F.3d 83, 87 (2d Cir.2003), and as we typically do not consider claims not adequately developed in party briefs, see Yueqing Zhang v. Gonzales, 426 F.3d 540," }, { "docid": "22773902", "title": "", "text": "F.3d at 341-42 (internal quotation marks omitted); that the BIA is entitled to “accord greater weight” to State Department reports in the record than to countervailing documentary evidence, Jian Hui Shao, 546 F.3d at 152; and that the weight afforded to the evidence, including State Department reports, “lies largely within the discretion of the [agency],” Xiao Ji Chen, 471 F.3d at 342 (internal quotation marks and alterations in original omitted). Here, the BIA stated that it had “considered the State Department documents on country conditions along with the particularized evidence presented by [Huang],” and concluded that Huang failed to demonstrate “a well-founded fear that the family planning policy will be enforced against her through means constituting persecution upon her return to China.” Matter of H-L-H- 25 I. & N. Dec. at 213. This use of the State Department documents was not error, although, as previously discussed, the error with respect to the IJ’s finding of coercive sterilization requires a remand for reconsideration of the BIA’s ultimate conclusion concerning the objective component of a reasonable fear of persecution. Conclusion The petition for review in No. 10-1263-ag is GRANTED, and the case is REMANDED for further consideration consistent with this opinion. In view of this remand, the consolidated case, No. 11-3584-ag, is DISMISSED without prejudice to reinstatement of the petition in the event that the BIA reissues a final order of removal on remand. . Huang designated Zhou as a derivative beneficiary. See 8 U.S.C. § 1158(b)(3) (2009); 8 CFR § 1208.21 (2012). . Because Huang does not challenge the BIA’s denial of her claims for withholding of removal or relief under the CAT, those claims are forfeited. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005). . The IJ did not explicitly make a finding as to whether the fine would constitute a \"deliberate imposition of a substantive economic disadvantage,” which we have ruled is needed before the imposition of a fine can be considered persecution. See Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir.2002) (internal quotation marks omitted). .The full" }, { "docid": "23632243", "title": "", "text": "“clearly erroneous” in its opinion, the review it conducted in fact was to independently assess Chen’s credibility without giving deference to the findings of the IJ. This is de novo review and constitutes legal error by the BIA requiring remand of Chen’s asylum claim. Furthermore, since the BIA’s denial of Chen’s withholding of removal claim was based solely on its denial of his asylum claim, we remand that claim as well. CONCLUSION For the foregoing reasons, we Grant the petition for review, Vacate the order of the BIA, and Remand the case for further proceedings consistent with this opinion. . Section 601(a)(1) of the IIRIRA amended the definition of refugee by adding the following: [A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion. Pub.L. No. 104-208, 110 Stat. 3009 (codified at 8 U.S.C. § 1101(a)(42)). . Since the government did not oppose Chen's motion to reopen on the ground that Chen did not voluntarily depart, we need not address whether that failure, without more, would act as a bar to any relief. . The government filed its appeal of the IJ's decision in this case on July 11, 2003. . Chen does not appeal the BIA's denial of his CAT claim in his brief to this Court. Therefore, we deem this claim waived and do not address it here. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1 (2d Cir.2005) (holding that the petitioner abandoned his challenge to the denial of his CAT claim by failing to discuss it in his brief). . In light of our decision vacating" }, { "docid": "22854585", "title": "", "text": "cannot support the BIA’s adverse credibility finding. II. Withholding of Removal and CAT Claims As the BIA’s reversal of the IJ’s grant of withholding of removal is predicated on the erroneous adverse credibility finding, we remand Lin’s withholding of removal for reconsideration by the BIA. See Pavlova v. INS, 441 F.3d 82, 92 (2d Cir.2006) (vacating withholding and CAT determinations that were premised on the same erroneous adverse credibility finding as the asylum claim). Lin argues in his brief that he is entitled to relief under the Convention Against Torture (CAT). Lin has never before requested this type of relief, and therefore, he has failed to exhaust his ad ministrative remedies. See Gill v. INS, 420 F.3d 82, 86 (2d Cir.2005) CONCLUSION For the foregoing reasons, we will Grant the petition for review, and Remand this case to the BIA for further proceedings consistent with this opinion. The stay of removal that the Court granted in this petition is Vacated. . The Homeland Security Act of 2002, transferred the functions of the \"INS” to the Department of Homeland Security (DHS) and retained in the Department of Justice (DOJ) the functions of the Executive Office for Immigration Review (EOIR). See Pub.L. 107-296, tit. IV, subtits. D, E, F, 116 Stat. 2135, 2192 (Nov. 25, 2002). In 2003, the Immigration and Customs Enforcement division of the Department of Homeland Security replaced the INS as this country’s immigration enforcement agency. See Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151, 157 n. 8 (2d Cir.2006). For ease of reference, this opinion will refer the government immigration officials as the INS. These changes also required the reorganization of the title 8 of the Code of Federal Regulations to place the INS regulations and the EOIR regulations into separate chapters. See 68 Fed.Reg. 9824 (Feb. 28, 2003). Chapter I of title 8 of the Code of Federal Regulations applies to the INS and DHS, and Chapter V applies to the EOIR and DOJ. Provisions applying to both the INS and EOIR were duplicated in chapter V. See 68 Fed.Reg. at 9825. Therefore, the section at" }, { "docid": "22396063", "title": "", "text": "withholding of removal on his wife’s alleged forcible abortion. It is not clear whether petitioner also bases a claim for relief on the alleged sterilization of his cousin. Such a claim would meet with the same problems as one derived from a spouse’s persecution and is, for the same reasons, foreclosed. CONCLUSION For these reasons, the petition for review of the denial of asylum is Dismissed for lack of jurisdiction and the petition for review of the withholding of removal claim is Denied. . The IJ also denied Sun’s application for relief under the Convention Against Torture (“CAT”). Sun’s appeal does not, however, raise any arguments concerning this claim. Accordingly, we consider only his arguments regarding his claims for asylum and withholding of removal. See, e.g., Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005) (explaining that issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal). . We also note that our recent decision in Zheng Jian Chen v. BIA, 461 F.3d 153 (2d Cir.2006) has indicated that, under certain circumstances, a discrepancy between the identification numbers shown on different documents may not necessarily indicate fraud. In Zheng Jian Chen, we observed that, although the petitioner had provided a specific explanation for the discrepancy, 461 F.3d at 156, the IJ had failed to investigate petitioner’s explanation. Id. at 156. Accordingly, we remanded for further fact-finding. Here, the IJ did not conclude that the discrepancy was based on fraud but merely noted that \"the numbers differ.” In addition, petitioner did not offer any explanation for the discrepancy. As such, the IJ cannot be said to have erred by failing to investigate. . 8 U.S.C. § 1231(b)(3)(A) provides for withholding of removal: [T]he Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion. . Sun arguably may have claimed persecution based on his own alleged resistance to" } ]

[ { "docid": "4037238", "title": "", "text": "reason to suspect that the defendant has been engaged in some illegal activity, e. g., sale of narcotic drugs, approaches the suspect and offers to buy contraband from him. The suspect, ignorant of the solicitor’s official capacity, sells to the officer the illegal drug. The entrapment issue is then a factual one — did the officer induce the requisite criminal intent? Chief Justice Hughes, in Sorrells, described entrapment as “when the criminal design originates with the officers of the government, and they implant in the mind of an innocent person the disposition to commit the alleged cf. fense and induce its commission in order that they may prosecute.” 287 U.S. at 442, 53 S.Ct. at 212. If the defense of entrapment must be confined solely to the issue of intent, then the defendant’s motion must fail. It is clear that the facts as presented here reveal that the intent to commit the crime arose solely in the mind of the defendant without inducement by the government. The intent to illegally possess counterfeit money was his own creation. There does not appear to be any single, well-recognized and consistent rationale for the entrapment defense. Reasons frequently advanced in support include (1) estoppel where there is evidence of governmental misconduct [Casey v. United States, 276 U.S. 413, 425, 48 S.Ct. 373, 72 L.Ed. 632 (1928) (Justice Brandeis dissenting)]; (2) constitutional concepts of due process [Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L. Ed.2d 1344 (1959), Note, Due Process and the Entrapment Defense, 1964 U. Ill. L. Forum 821, and Comment, The Serpent Beguiled Me and I Did Eat— The Constitutional Status of the Entrapment Defense, 74 YALE L. J. 942 (1965)]; (3) the innocence theory [Sorrells, supra and Sherman, supra]; (4) public policy [Ritter v. United States, 293 F. 187 (9th Cir. 1923)]; and (5) preservation of the integrity of the judicial processes [Sorrells, supra (Justice Roberts concurring), and Sherman, supra (Justice Frankfurter concurring)]. In both Sorrels, and in Sherman, the Supreme Court was “sharply divided” [Lopez, supra 373 U.S. at 434, 83 S.Ct. 1381] over an acceptable foundation" } ]

[ { "docid": "22747120", "title": "", "text": "“no” in a case where the federal agent treated the suspects “as partners” with him, offered to supply them with a still, a still site, still equipment, and an operator and supplied them with sugar. Id., at 786. The Court of Appeals in United States v. Bueno, 447 F. 2d 903, speaking through Judges Roney, Coleman, and Simpson, held that where an informer purchased heroin for the accused who in turn sold it to a federal agent, there was entrapment because the sale was made “through the creative activity of the government.” Id., at 906. In United States v. Chisum, 312 F. Supp. 1307, the federal agent supplied the accused with the counterfeit money, the receipt of which was the charge against him. Judge Ferguson sustained the defense of entrapment saying, “When the government supplies the contraband, the receipt of which is illegal, the government cannot be permitted to punish the one receiving it.” Id., at 1312. The Court of Appeals in the instant case relied upon this line of decisions in sustaining the defense of entrapment, 459 F. 2d 671. In doing so it took the view that the “prostitution of the criminal law,” as Mr. Justice Roberts described it in Sorrells, 287 U. S., at 457, was the evil at which the defense of entrapment is aimed. Federal agents play a debased role when they become the instigators of the crime, or partners in its commission, or the creative brain behind the illegal scheme. That is what the federal agent did here when he furnished the accused with one of the chemical ingredients needed to manufacture the unlawful drug. Mr. Justice Stewart, with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting. It is common ground that “[t]he conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials and their agents.” Lopez v. United States, 373 U. S. 427, 434 (1963). For the Government cannot be permitted to instigate the commission of a criminal offense in order to prosecute someone for committing it. Sherman v. United States, 356 U." }, { "docid": "8530697", "title": "", "text": "Service agent. Metzger told defendant that he would set up a meeting between “Larry” and defendant in which the latter could see samples of the counterfeit money offered for sale. This meeting was held, and the price and amount of the bills to be sold was discussed. About a week later, “Larry” contacted the defendant and inquired whether he was still interested in the transaction. Defendant indicated he was and suggested the deal be closed that evening. The purchase by defendant from the agent was consummated and the agent thereafter arrested defendant for receiving counterfeit bills with the intent to pass them as genuine. 312 F.Supp. at 1308-1309. The court stated unequivocally that the predisposition to commit the crime was in no way induced by the government. After discussing the various theories espoused in opinions and legal literature concerning the defense of entrapment, Judge Ferguson wrote: The theme taken by Justice Frankfurter in Sherman [v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848], following the reasoning of Justice Roberts in Sorrells [v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413], is that entrapment is a defense because “the methods employed on behalf of the Government to bring about conviction cannot be countenanced.” . . . Under this view the evidence of a predisposition is irrelevant. The paramount concern is “whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.” 312 F.Supp. at 1310. Significantly, the Fifth Circuit has taken a similar view of the defense of entrapment. See Williamson v. United States, 311 F.2d 441, 445 (5th Cir. 1962), discussed below. The court in Chisum was impressed by the fact that this was one of the rare instances in which “the government [had] furnished the defendant the contraband which constituted the crime” and concluded: Were the court to sanction the law enforcement activities committed in this case, it would transform the laws designed to promote the general welfare into a technique aimed at manufacturing disobedience in order to punish, a" }, { "docid": "1865738", "title": "", "text": "v. United States, 356 U.S. 369 [78 S.Ct. 819, 2 L.Ed.2d 848] (1958). Appellant recognizes that the Supreme Court has recently rejected a “Government conduct” theory of entrapment in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), but he neverthless argues that such a theory may represent a proper basis for an entrapment defense where, as here, the defendant’s version of the evidence discloses that the Government supplied the contraband without which there would be no crime. In United States v. Russell, supra,, an undercover narcotics agent supplied essential ingredients needed in the manufacture of an illegal drug, methamphetamine (“speed”). Russell and his co-defendants were charged with unlawful manufacture, processing, and sale of that drug. Russell offered a defense of entrapment as a matter of law. He was convicted upon a jury trial. On appeal, the Ninth Circuit reversed the conviction for “an intolerable degree of governmental participation in the criminal enterprise.” United States v. Russell, 459 F.2d 671, 673 (9th Cir. 1972). The Supreme Court on writ of certiorari reversed and, in doing so, reaffirmed that the entrapment defense focuses essentially “on the intent or predisposition of the defendant to commit the crime.” United States v. Russell, 411 U.S. at 429, 93 S.Ct. at 1641. The respondent-Russell contended that the Ninth Circuit had properly expanded the traditional notion of entrapment to require dismissal because of the extensive Government participation in perpetrating the alleged crime. Russell rested his claim on two theories: (a) that entrapment exists whenever the Government supplies contraband to the defendants or (b) that entrapment exists when a Government investigator becomes enmeshed in criminal activity to such a degree that prosecution of the defendants is repugnant to the American criminal justice system. The Court rejected these theories in Russell and refused to set aside the theory of the en trapment defense as based solely on predisposition and as explicated in the majority opinions in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), and Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d" }, { "docid": "9584055", "title": "", "text": "counterfeit money by a Government Agent and then indicted for receiving the counterfeit bills with intent to pass them as genuine. In each case the court held that since the Government had supplied the defendant with the contraband, the defendant was entrapped as a matter of law, regardless of the accused’s predisposition to commit the crime. The facts of the present case cannot fairly be distinguished from those of Bueno and Chisum. While it is true that Russell and his codefendants were supplied with only one ingredient of the illicit drug, that ingredient was as essential to the perpetration of Russell’s alleged crimes as was the heroin in Bueno and the counterfeit money in Chisum. Russell would have been powerless to “commit” the charged offenses without the Government’s pervasive intervention. The Government, in effect, contends that we are not free to adopt the Bueno-Chisum reasoning. Assuming, arguen-do, that the Government is correct in its assessment of Walton, supra, as limiting the applicability of the “entrapment” defense to instances in which the defendant had no predisposition to commit the crime, an approach other than that relating to the strict “entrapment” defense requires reversal. Judge Ham-ley, the author of the Walton opinion, recently articulated the rationale underlying this alternative approach: “. . . although this is not an entrapment case, when the Government permits itself to become enmeshed in ' criminal activity, from beginning to end, to the extent which appears here, the same underlying objections which render entrapment repugnant to American criminal justice are operative. Under these circumstances, the Government’s conduct rises to a level of “creative activity” (Sherman, supra, 356 U.S. at 372, 78 S.Ct. at 821), substantially more intense and aggressive than the level of such activity charged against the Government in numerous entrapment cases we have examined.” Greene v. United States, 454 F.2d 783 (9th Cir. 1971). The holding of Greene, however, was limited to the unique circumstances there involved. The Government Agent in that case alternately prodded, threatened, encouraged, and aided the defendants in manufacturing and supplying him with bootleg whiskey. The conduct of the Agent in" }, { "docid": "15424408", "title": "", "text": "The Court elaborated on Russell in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), where Justice Rehnquist reaffirmed the principle that a defendant predisposed to commit a crime cannot assert the entrapment defense, which focuses on predisposition rather than the conduct of the government’s agents. Id. at 488-89, 96 S.Ct. at 1649. In his concurrence, Justice Powell suggested that even a predisposed defendant could successfully challenge his conviction if police behavior was sufficiently outrageous. Id. at 492-493, 96 S.Ct. at 1651. Only the Third and Ninth Circuits have reversed convictions on due process grounds. The due process defense has been successfully asserted in two types of cases: those concerning counterfeiting or drug manufacturing operations in which government agents or informants were heavily involved; and those in which government agents sold drugs or supplied drugs for sale by defendants. Appellants argue that this case involves both kinds of government conduct, and that the government’s involvement with Cartwright’s counterfeiting operation and its sale of counterfeit currency constitute violations of due process. In a case involving a drug manufacturing operation, United States v. Twigg, 588 F.2d 373 (3rd Cir.1978), the Third Circuit reversed a conviction where a government informant suggested to the defendant that they jointly set up a methamphetamine, or “speed,” lab. Drug Enforcement Administration agents provided the defendant with hard-to-obtain chemicals and about a fifth of the required glassware and secured a farmhouse in which to set up the lab. The government informant was in charge of the production process and provided the “know-how” required to make methamphetamine. The Third Circuit reviewed Russell, Hampton, and circuit cases discussing the due process defense. It concluded that: “[t]his egregious conduct on the part of government agents generated new crimes by the defendant merely for the sake of pressing criminal charges against him when, as far as the record reveals, he was lawfully and peacefully minding his own affairs. Fundamental fairness does not permit us to countenance such actions by law enforcement officials and prosecution for a crime so fomented by them will be barred. Id. at 381." }, { "docid": "9584058", "title": "", "text": "the Government which calls the defense of entrapment into play.” United States v. Arceneaux, 437 F.2d 924, 925 (9th Cir. 1971). Cf. United States v. Bueno, 447 F.2d 903, 906 (5th Cir. 1971); United States v. Chisum, 312 F.Supp. 1307, 1310 (C.D. Cal.1970). We also note that Judge Hamley, the author of the Walton opinion, upon which the Government relies in urging that lack of predisposition is an essential element of a successful entrapment defense, recently indicated that such is true only in “the usual entrapment defense.” Greene v. United States, 454 F.2d 783, 78C (9th Cir. 1971). . See also Notaro v. United States, 363 F.2d 169, wherein, at 173, we wrote: “It . . . [is] . . . not thought to be right or just that a Government should instigate and successfully pursue prosecution for the commission of an act which the prosecuted would not likely have committed but for the importunity of an agent of the Government itself.” . See Raley v. Ohio, 360 U.S. 423, 79 S. Ct. 1257, 3 L.Ed.2d 1344 (1959), discussed in United States v. Chisum, 312 F.Supp. 1307, 1310 (C.D. Cal.1970). . Sherman v. United States, 356 U.S. 369, 381, 78 S.Ct. 819, 825, 2 L.Ed.2d 848, 856 (1958) (Frankfurter, J., concurring). TRASK, Circuit Judge (dissenting): The majority reverses this judgment of conviction upon the ground that the “participation of a Government Agent in the crimes was so overreaching as to constitute entrapment as a matter of law.” I respectfully disagree. The case was tried to a jury and the court sustained the verdict and rendered judgment thereon. There is no question but that Russell did the things he was charged with doing. In his brief to this court he states: “The jury was instructed as to the law on entrapment as set forth in Notaro v. U. S., 363 F.2d 169 (1966, 9th Cir.) and Walton v. U. S. [United States v. Walton], 411 F.2d 283 (1969, 9th Cir.), and concededly here we do not have an issue of propensity, because the defendant through hearsay statements stated that he did" }, { "docid": "8422953", "title": "", "text": "conviction for possession of counterfeit currency and conspiracy to produce and pass counterfeit obligations where the Government had taken charge of and supervised a counterfeiting operation after the defendant had initially purchased counterfeiting materials and had attempted to locate a willing printer. The Seventh Circuit relied, at least partially, on the rationale that it was “repugnant to the most elemental notions of justice to permit law enforcement personnel to manufacture counterfeit bills, deliver0them and then arrest the recipient for possession of contraband.” 468 F.2d at 1030. In explicit reliance on the concurring opinions in Sorrells and Sherman the Court pur- ported to exercise its supervisory power to bar a prosecution due to an excessive degree of police participation in the criminal activity. Since we can only speculate on the signifiance of the Court’s cryptic order in McGrath, our determination as to the continuing viability of Bueno must ultimately rest on a careful consideration of Russell. As we have pointed out above, the holding of Russell does not, in our view, undercut the vitality of Bueno. . We point out that where the facts may require submission of a charge on the standard entrapment defense as well as a Bueno instruction, the Court should be careful to indicate that these are separate concepts in order to avoid misleading the jury into believing that the Bueno defense is unavailable where the jury finds that the defendant manifested a sufficient predisposition to commit the crime even though this would prove fatal to the standard entrapment defense. . In reinstructing the jury on entrapment, the Court attempted to draw a distinction between lawful and unlawful entrapment. We have recognized that such a distinction is “confusing and perhaps erroneous.” United States v. Groessel, 5 Cir., 1971, 440 F.2d 602, cert, denied, 403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 713. We need not determine in this case whether such an instruction constitutes reversible error. United States v. Sadler, 5 Cir., 1974, 488 F.2d 434. . In United States v. Womack, 5 Cir., 1972, 454 F.2d 1337, 1344, we disapproved the charge which we had originally" }, { "docid": "22747119", "title": "", "text": "which he has sunk in the estimation of society, certain police conduct to ensnare him into further crime is not to be tolerated by an advanced society.” And he added: “The power of government is abused and directed to an end for which it was not constituted when employed to promote rather than detect crime . . . .” Id., at 384. Mr. Justice Roberts in Sorrells put the idea in the following words: “The applicable principle is that courts must be closed to the trial of a crime instigated by the government’s own agents. No other issue, no comparison of equities as between the guilty official and the guilty defendant, has any place in the enforcement of this overruling principle of public policy.” 287 U. S., at 459. May the federal agent supply the counterfeiter with the kind of paper or ink that he needs in order to get a quick and easy arrest? The Court of Appeals in Greene v. United States, 454 F. 2d 783, speaking through Judges Hamley and Hufstedler, said “no” in a case where the federal agent treated the suspects “as partners” with him, offered to supply them with a still, a still site, still equipment, and an operator and supplied them with sugar. Id., at 786. The Court of Appeals in United States v. Bueno, 447 F. 2d 903, speaking through Judges Roney, Coleman, and Simpson, held that where an informer purchased heroin for the accused who in turn sold it to a federal agent, there was entrapment because the sale was made “through the creative activity of the government.” Id., at 906. In United States v. Chisum, 312 F. Supp. 1307, the federal agent supplied the accused with the counterfeit money, the receipt of which was the charge against him. Judge Ferguson sustained the defense of entrapment saying, “When the government supplies the contraband, the receipt of which is illegal, the government cannot be permitted to punish the one receiving it.” Id., at 1312. The Court of Appeals in the instant case relied upon this line of decisions in sustaining the defense" }, { "docid": "23211640", "title": "", "text": "court’s “direct” entrapment instruction was unduly one-sided and prejudicial. In resolving this issue we must consider the jury charge “in its entirety and not on a sentence by sentence basis.” United States v. Smith, 584 F.2d 759, 763 (6th Cir.1978), cert. denied, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1979) (citing, Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). The district court instructed the jury that: [T]he defendants [Valdez] and Yaqui assert that they were victims of entrapment as to the offenses charged in the indictment. Entrapment is a complete defense. Entrapment occurs when the government’s deception actually implants the criminal design in the mind of a defendant. Where a person is ready and willing to break the law, the mere fact that government agents provide what appears to be a favorable opportunity, or participate, themselves, in the offense itself, is not entrapment. Unlawful entrapment can only result from the conduct of a governmental agent, or a person acting upon the instructions or direction of any law enforcement officer of the United States. Criminal activity is such that stealth, strategem and undercover agents are necessary weapons in the arsenal of police officers. For example, when the government suspects that a person is engaged in the sale of counterfeit currency, it is not entrapment for a government agent to pretend to be someone else and to offer, either directly or through an informer or decoy to purchase counterfeit currency from such suspected party. Note: The function of law enforcement is the prevention of crime and the apprehension of criminals. This function does not include the manufacturing of crime. The burden is upon the government to establish beyond a reasonable doubt the defendants were not entrapped. To determine whether there has been entrapment a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal. We find this instruction to be an accurate conglomeration of Supreme Court and Sixth Circuit pronouncements on the entrapment defense. In Sorrells v. United States, 287 U.S. 435, 441, 53 S.Ct. 210, 212," }, { "docid": "8530698", "title": "", "text": "United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413], is that entrapment is a defense because “the methods employed on behalf of the Government to bring about conviction cannot be countenanced.” . . . Under this view the evidence of a predisposition is irrelevant. The paramount concern is “whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.” 312 F.Supp. at 1310. Significantly, the Fifth Circuit has taken a similar view of the defense of entrapment. See Williamson v. United States, 311 F.2d 441, 445 (5th Cir. 1962), discussed below. The court in Chisum was impressed by the fact that this was one of the rare instances in which “the government [had] furnished the defendant the contraband which constituted the crime” and concluded: Were the court to sanction the law enforcement activities committed in this case, it would transform the laws designed to promote the general welfare into a technique aimed at manufacturing disobedience in order to punish, a concept thoroughly repugnant to constitutional principles. When the government supplies the contraband, the receipt of which is illegal, the government cannot be permitted to punish the one receiving it. To permit the government to do so would be to countenance violations of justice. As Justice Roberts stated in Sorrells, “It is the province of the Court and the Court alone to protect itself and the government from such prostitution of the criminal law.” 287 U.S. at 457 [53 S.Ct. 210 at 218] (separate opinion). The government has attempted to respond to the thrust of Chisum by characterizing it as a sort of bastard case, at variance with the settled rule of entrapment in the Ninth Circuit. See United States v. Tatar, 439 F.2d 1300 (9th Cir. 1971); United States v. Walton, 411 F.2d 283, 288 (9th Cir. 1969). Cf. Corcoran v. United States, 427 F.2d 16 (9th Cir. 1970); Perez v. United States, 421 F.2d 462 (9th Cir. 1970). Although there is some language, especially in Tatar, that would support the government’s position that Chisum" }, { "docid": "21909173", "title": "", "text": "us it is independently determinable. Here the police quite literally “manufactured” the crime. We find it repugnant to the most elemental notions of justice to permit law enforcement personnel to manufacture counterfeit bills, deliver them, and then arrest the recipient for possession of contraband. In United States v. Chisum, 312 F.Supp. 1307 (C.D.Cal.1970), a California district court, confronting a similar situation found entrapment as a matter of law, reasoning that “[w]hen the government supplies the contraband, the receipt of which is illegal, the government cannot be permitted to punish the one receiving it. To permit the government to do so would be to countenance violations of justice.” 312 F.Supp. at 1312. We cannot believe that Congress intended to punish a defendant for possession of counterfeit bills where the defendant took the initial steps leading to the commission of the crime but where the impermissible act itself was performed by the Government. Whatever criminal proclivities the defendant had were exacerbated by official intervention, a perhaps revocable commitment to crime was then made irrevocable. More significantly, the harm to society derived from the agents’ actions rather than from the defendant’s. It is apparent that the facts of this case fit more squarely within the framework articulated in the concurring opinions in Sorrells and Sherman. The concurring Justices in each opinion take police behavior, rather than the defendant’s predisposition, as the linchpin of the entrapment defense. They make no attempt to reconcile entrapment with statutory definitions of guilt. Instead, they root the defense squarely in the court’s supervisory power over the administration of justice. The court, according to their view, cannot allow its processes to serve impermissible police conduct. As Mr. Justice Roberts indicated in his concurrence in Sorrells, “The doctrine rests, rather, on a fundamental rule of public policy. The protection of its own functions and the preservation of the purity of its own temple belongs only to the court.” 287 U.S. at 457, 53 S.Ct. at 218. The concurring Justices in Sherman, speaking through Mr. Justice Frankfurter, formulated an alternative test for entrapment; “[wjhether the police conduct revealed in the particular" }, { "docid": "18043978", "title": "", "text": "note that in finding entrapment as a matter of law on the facts of that case, they were “not choosing between conflicting witnesses, nor judging credibility.” The case at bar is similar to Notaro v. United States, 363 F.2d 169 (9th Cir. 1966) in many respects. In this case, there were sharp conflicts between the testimony of the appellant and the government informant. We wrote: “The credibility of each was put in question, and their demeanor and attitude, not observable to us here, was subject to scrutiny by both the judge and jury. When, as here, the result of the trial was so dependent upon the conflicting testimony of two witnesses and when the trial judge refused to disturb the jury’s determination in spite of his own expressed leaning toward an opposite conclusion, we cannot bring ourselves to interfere.” No-taro v. United States, supra, at p. 173, citing Marin v. United States, 324 F. 2d 66 (9th Cir. 1963), cert. denied 379 U.S. 806, 85 S.Ct. 91, 13 L.Ed.2d 73 (1964). 2. Instructions on Entrapment. Appellant Griffin also contends that the instruction given by the trial court on the entrapment issue is fatally defective in its use of the term “offer.” The instruction to which objection is made reads in part: “The defendant (Griffin) asserts that she was the victim of entrapment after the crime charged in the indictment. “Where a person has no previous intent to violate the law, but is induced or persuaded by law enforcement officers or agents to commit a crime, he is the victim of entrapment, and the law as a matter of policy forbids a conviction in such a case. “On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that Government Agents provide what appears to be a favorable opportunity is no defense, but is a lawful entrapment. When, for example, the Government has reasonable grounds for believing that a person is engaged in the illicit sale of narcotics, it is not unlawful entrapment for a Government Agent to pretend to be someone" }, { "docid": "8530699", "title": "", "text": "concept thoroughly repugnant to constitutional principles. When the government supplies the contraband, the receipt of which is illegal, the government cannot be permitted to punish the one receiving it. To permit the government to do so would be to countenance violations of justice. As Justice Roberts stated in Sorrells, “It is the province of the Court and the Court alone to protect itself and the government from such prostitution of the criminal law.” 287 U.S. at 457 [53 S.Ct. 210 at 218] (separate opinion). The government has attempted to respond to the thrust of Chisum by characterizing it as a sort of bastard case, at variance with the settled rule of entrapment in the Ninth Circuit. See United States v. Tatar, 439 F.2d 1300 (9th Cir. 1971); United States v. Walton, 411 F.2d 283, 288 (9th Cir. 1969). Cf. Corcoran v. United States, 427 F.2d 16 (9th Cir. 1970); Perez v. United States, 421 F.2d 462 (9th Cir. 1970). Although there is some language, especially in Tatar, that would support the government’s position that Chisum represents a substantial departure from settled law, this does not appear to be the case. For example, the same judge who articulated the standard entrapment rule in Walton, supra, recognized the “government misconduct” rationale as a distinct alternative defense to prosecution — one to which the usual prerequisite of no predisposition to commit the crime did not apply— in Greene v. United States, 454 F.2d 783, 786 (9th Cir. 1971). Thus in Greene, where the government agent got in touch with a recently paroled bootlegger, urged him to reestablish his illicit business, furnished him with the necessary supplies and materials, and acted as his sole customer for almost two and one-half years before rearresting him, the Ninth Circuit ordered the indictment dismissed. The court explained: [Although this is not an entrapment case, when the Government permits itself to become enmeshed in criminal activity, from beginning to end, to the extent which appears here, the same underlying objections which render entrapment repugnant to American criminal justice are operative. Under these circumstances, the Government’s conduct rises to" }, { "docid": "23665015", "title": "", "text": "a reasonable doubt as to whether defendant was predisposed to engage in the sale of marijuana prior to meeting Pugh on December 15th. The district court would have erred had it not instructed the jury on the defense of entrapment. The propriety of the instruction given, therefore, must be examined next. B. Instructing the Jury The district court charged the jury on the issue of entrapment as follows: So, if you, as the Jurors, having heard the evidence in the case, conclude that before anything at all occurred respecting the alleged offense involved in this case, the defendant was ready and willing to commit crimes such as those charged in the indictment when a favorable opportunity was offered and the Government merely offered him the opportunity, then the defendant is not entitled to the defense of unlawful entrapment. If, on the other hand, you find that the defendant had no previous intent or purpose to commit any offense of the character charged and did so only because he was induced, or persuaded by some Agent of the Government, then the prosecution would have seduced an innocent person and the defense of entrapment would be a good defense, and of course, in that event the defendant should be acquitted. Record, Vol. 3 at 214-15. Defendant made timely exceptions to the court’s instructions and refusal to give defendant’s requested charge. The issue squarely before this Court is whether the standards enunciated in Notaro v. United States, 363 F.2d 169 (9th Cir. 1966), should govern jury instructions on the defense of entrapment. We hold that Notaro does govern the case sub judice and requires reversal. In Notaro the defendant sought reversal on the ground that the entrapment instructions given to the jury were misleading and prejudicially erroneous. The challenged instructions read as follows: “If, then, the jury should find beyond a reasonable doubt from the evidence in the case that before anything at all occurred respecting the alleged offense involved in this case, the accused was ready and willing to commit crimes such as charged in the indictment, whenever opportunity was offered and" }, { "docid": "23665016", "title": "", "text": "of the Government, then the prosecution would have seduced an innocent person and the defense of entrapment would be a good defense, and of course, in that event the defendant should be acquitted. Record, Vol. 3 at 214-15. Defendant made timely exceptions to the court’s instructions and refusal to give defendant’s requested charge. The issue squarely before this Court is whether the standards enunciated in Notaro v. United States, 363 F.2d 169 (9th Cir. 1966), should govern jury instructions on the defense of entrapment. We hold that Notaro does govern the case sub judice and requires reversal. In Notaro the defendant sought reversal on the ground that the entrapment instructions given to the jury were misleading and prejudicially erroneous. The challenged instructions read as follows: “If, then, the jury should find beyond a reasonable doubt from the evidence in the case that before anything at all occurred respecting the alleged offense involved in this case, the accused was ready and willing to commit crimes such as charged in the indictment, whenever opportunity was offered and that the Government agents did no more than offer the opportunity, the accused is not entitled to the defense of unlawful entrapment. “On the other hand, if the jury should find from the evidence in the case that the accused had no previous intent or purpose to commit any offense of the character here charged, and did so only because he was induced or persuaded by some agent of the Government, then the defense of unlawful entrapment is a good defense and a jury should acquit the defendant.” 363 F.2d at 173 (emphasis in original, footnote omitted). In reversing defendant’s conviction on the basis of the erroneous instruction the Notaro court said: When a party has the burden of proof as to a factual issue, it cannot be proper that instructions pertaining to [that] issue are so vague or ambiguous as to permit of misinterpretation by the jury of the standard which is to be applied. The desire of a careful judge to avoid language which to him may seem unnecessarily repetitive should yield to" }, { "docid": "21909172", "title": "", "text": "fact that McGrath did nothing to indicate he wished to withdraw is not sufficient to justify the agents’ activities. No more so than in the ordinary inducement situation where the fact that the individual was successfully induced is insufficient to justify overt entrapment. To be sure, our concept of the defendant’s responsibilities in each of these situations is tempered by the important responsibilities of the Government to prevent rather than instigate crime. Accordingly, the rationale of Sorrells, where the Government apparently engineered the crime, applies equally to a situation where the Govern ment itself performs essential parts of a criminal offense that might not otherwise have been committed. In addition, quite apart from the defendant’s role, we find the Government’s activities in the instant case “shocking to our sense of justice,” the same kind of response that led the Court in Sorrells to formally recognize the entrapment defense. While Sherman and Sorrells imply that the offensiveness of police conduct will be measured by the criminality of the defendant, we suggest that in the case before us it is independently determinable. Here the police quite literally “manufactured” the crime. We find it repugnant to the most elemental notions of justice to permit law enforcement personnel to manufacture counterfeit bills, deliver them, and then arrest the recipient for possession of contraband. In United States v. Chisum, 312 F.Supp. 1307 (C.D.Cal.1970), a California district court, confronting a similar situation found entrapment as a matter of law, reasoning that “[w]hen the government supplies the contraband, the receipt of which is illegal, the government cannot be permitted to punish the one receiving it. To permit the government to do so would be to countenance violations of justice.” 312 F.Supp. at 1312. We cannot believe that Congress intended to punish a defendant for possession of counterfeit bills where the defendant took the initial steps leading to the commission of the crime but where the impermissible act itself was performed by the Government. Whatever criminal proclivities the defendant had were exacerbated by official intervention, a perhaps revocable commitment to crime was then made irrevocable. More significantly, the" }, { "docid": "9584053", "title": "", "text": "accused, but on the conduct of the Government: “The crucial question, not easy of answer, to which the court must direct itself is whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.” Sherman v. United States, 356 U.S. 369, 382, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) (Frankfurter, J., concurring). The basic contention of the Government, in response to Russell’s claim, is premised on the following statement of our court, drawn from the majority opinions in Sherman and Sorrells: “Entrapment is shown where Government agents go beyond the mere affording of opportunities or facilities for the commission of the offense and exert persuasion of one kind or another which induces the commission of a crime by one who has no predisposition to do so.” United States v. Walton, 411 F.2d 283, 288 (9th Cir. 1969). The Government argues that the plain import of this language is that one altogether forfeits an entrapment defense if he is “predisposed” to commit the crime. We need not resolve the precise issue apparently presented by the parties. For regardless of the significance of “predisposition” as an element in “entrapment,” we conclude that there is merit in Russell’s contention that a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise. Two theories for this defense have been advanced. Placing the defense within the ambit of the entrapment doctrine was the approach taken by our learned Brothers of the Fifth Circuit in United States v. Bueno, 447 F.2d 903 (5th Cir. 1971), and by District Judge Ferguson in his very carefully written opinion in United States v. Chisum, 312 F.Supp. 1307 (C.D.Cal. 1970). The facts of Bueno and Chisum are remarkably similar to those presented here. In Bueno, the defendant was supplied heroin by a government informer, but was nonetheless convicted for selling the same heroin to the Government Agent for whom the informer apparently was working, the sales having been arranged by the informer. In Chisum, the defendant was supplied" }, { "docid": "8530700", "title": "", "text": "represents a substantial departure from settled law, this does not appear to be the case. For example, the same judge who articulated the standard entrapment rule in Walton, supra, recognized the “government misconduct” rationale as a distinct alternative defense to prosecution — one to which the usual prerequisite of no predisposition to commit the crime did not apply— in Greene v. United States, 454 F.2d 783, 786 (9th Cir. 1971). Thus in Greene, where the government agent got in touch with a recently paroled bootlegger, urged him to reestablish his illicit business, furnished him with the necessary supplies and materials, and acted as his sole customer for almost two and one-half years before rearresting him, the Ninth Circuit ordered the indictment dismissed. The court explained: [Although this is not an entrapment case, when the Government permits itself to become enmeshed in criminal activity, from beginning to end, to the extent which appears here, the same underlying objections which render entrapment repugnant to American criminal justice are operative. Under these circumstances, the Government’s conduct rises to a level of “creative activity” . . . substantially more intense and aggressive than the level of such activity charged against the Government in numerous entrapment cases we have examined. This recognition of two distinct doctrines warranting dismissal was reaffirmed in United States v. Russell, 459 F.2d 671 (9th Cir. 1972), cert. granted, 409 U.S. 911, 93 S.Ct. 226, 34 L.Ed.2d 172 (1972). There the government supplied to an illicit manufacturer of methamphetamine (speed) a chemical compound which was essential to the manufacture of the drug, and then arrested him for producing it. Stating that it could not fairly distinguish its case from “the very carefully written opinion” of the district court in Chisum, supra, the Ninth Circuit stated: While it is true that Russell and his codefendants were supplied with only one ingredient of the illicit drug, that ingredient was as essential to the perpetration of Russell’s alleged crimes as was . . . the counterfeit money in Chisum. Russell would have been powerless to “commit” the charged offenses without the Government’s pervasive intervention." }, { "docid": "9584059", "title": "", "text": "L.Ed.2d 1344 (1959), discussed in United States v. Chisum, 312 F.Supp. 1307, 1310 (C.D. Cal.1970). . Sherman v. United States, 356 U.S. 369, 381, 78 S.Ct. 819, 825, 2 L.Ed.2d 848, 856 (1958) (Frankfurter, J., concurring). TRASK, Circuit Judge (dissenting): The majority reverses this judgment of conviction upon the ground that the “participation of a Government Agent in the crimes was so overreaching as to constitute entrapment as a matter of law.” I respectfully disagree. The case was tried to a jury and the court sustained the verdict and rendered judgment thereon. There is no question but that Russell did the things he was charged with doing. In his brief to this court he states: “The jury was instructed as to the law on entrapment as set forth in Notaro v. U. S., 363 F.2d 169 (1966, 9th Cir.) and Walton v. U. S. [United States v. Walton], 411 F.2d 283 (1969, 9th Cir.), and concededly here we do not have an issue of propensity, because the defendant through hearsay statements stated that he did sell speed and associated with Connolly who manufactured speed. The jury could find from the testimony that the government had not unlawfully entrapped Russell and that Russell did commit the acts as charged. There is no question that Russell committed the acts.” Appellant’s Brief at 7. There was no error claimed in any instruction given or refused. The “overreaching participation” relied upon by the majority is the conduct of the government agent in supplying Phenyl-2-Propanone to the defendant and his fellow manufacturers. This chemical is essential to the manufacture of methamphetamine. The opinion states that it could not have been obtained had the government agent not supplied it. I would disagree with the rationale of the majority assuming its recital of facts is correct. I particularly dissent when the facts as I read them completely fail to support the factual recitals upon which the opinion is based. The thesis is that the three individuals involved would not have been able to manufacture the product and sell it without the chemical from the government. The crimes" }, { "docid": "9584054", "title": "", "text": "crime. We need not resolve the precise issue apparently presented by the parties. For regardless of the significance of “predisposition” as an element in “entrapment,” we conclude that there is merit in Russell’s contention that a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise. Two theories for this defense have been advanced. Placing the defense within the ambit of the entrapment doctrine was the approach taken by our learned Brothers of the Fifth Circuit in United States v. Bueno, 447 F.2d 903 (5th Cir. 1971), and by District Judge Ferguson in his very carefully written opinion in United States v. Chisum, 312 F.Supp. 1307 (C.D.Cal. 1970). The facts of Bueno and Chisum are remarkably similar to those presented here. In Bueno, the defendant was supplied heroin by a government informer, but was nonetheless convicted for selling the same heroin to the Government Agent for whom the informer apparently was working, the sales having been arranged by the informer. In Chisum, the defendant was supplied counterfeit money by a Government Agent and then indicted for receiving the counterfeit bills with intent to pass them as genuine. In each case the court held that since the Government had supplied the defendant with the contraband, the defendant was entrapped as a matter of law, regardless of the accused’s predisposition to commit the crime. The facts of the present case cannot fairly be distinguished from those of Bueno and Chisum. While it is true that Russell and his codefendants were supplied with only one ingredient of the illicit drug, that ingredient was as essential to the perpetration of Russell’s alleged crimes as was the heroin in Bueno and the counterfeit money in Chisum. Russell would have been powerless to “commit” the charged offenses without the Government’s pervasive intervention. The Government, in effect, contends that we are not free to adopt the Bueno-Chisum reasoning. Assuming, arguen-do, that the Government is correct in its assessment of Walton, supra, as limiting the applicability of the “entrapment” defense to instances in which the defendant had no predisposition" } ]

[ { "docid": "22663666", "title": "", "text": "and that upon the filing of such protest the collector shall within 90 days thereafter review his decision, and may modify the same in whole or in part and thereafter remit or refund any duties or exaction found to have been assessed or collected in excess of the amount due (secs. 514, 515, Tariff Act of 1930). Despite those provisions of law, the court does not find it necessary to hold that the 30-day period prescribed in article 15.8 is an unreasonable or invalid requirement. By compliance therewith allowance may be obtained for merchandise not actually imported and thereby facilitate not only the work of customs officers but also may avoid the necessity of going to court. In fact, the record herein discloses that appellee, having complied with the regulation as to other portions of the invoiced and entered merchandise, allowance in duties was made by the collector for the bottles reported as missing. However, there may be circumstances under which it is impossible or very difficult to comply with the requirements prescribed by the regulation here in issue. Therefore, a party is entitled under the law to a judicial review of the decision of the collector. • Appellant contends that the issue here involved is governed by the decision in the case of United States v. Canada Dry Ginger Ale, Inc., 34 C. C. P. A. (Customs) 12, C. A. D. 337. In that case the validity or reasonableness of article 812 was not at issue. It was not questioned and therefore was considered as having the force and effect of law binding all parties. Had that issue been raised, the court might have reached a different conclusion. Here that issue is squarely before us for determination. It is to be understood that the decision in this case is limited to the issue of nonimportation of merchandise, and appellee having sustained its burden of proof herein on that issue, the judgment of the United States Customs Court is accordingly affirmed." } ]

[ { "docid": "13066289", "title": "", "text": "at $9 per wine gallon under section 2800 (a) (1) of the Internal Revenue Code of 1939 (26 U. S. C. § 2800 (a) (1)), as amended by the act of February 25, 1944 (58 Stat. 61). Plaintiff does not contest the classification or the rates but claims that duty and internal revenue tax should have been taken on the basis of proof gallons withdrawn for consumption at 84 proof. Counsel have, by stipulation, withdrawn the previous submission of this case and have resubmitted it to the third division as now constituted. Before discussing the merits of this case, it is necessary to dispose of a motion made by the Government to dismiss the suit on the ground that plaintiff has not shown that any claim for refund or credit was filed with and disallowed by the Commissioner of Internal Revenue, as provided by section 3772 of the Internal Revenue Code of 1939 (26 U. S. C. § 3772). This same question was before the court in Bercut-Vandervoort & Co., Inc. v. United States, 35 Cust. Ct. 113, C. D. 1730, wherein we held that a protest may be filed and an action brought in this court for the recovery of internal revenue taxes claimed to be improperly assessed on imported merchandise, without the filing of such a claim for refund. We pointed out that the procedure provided by said section 3772 is not compatible with the procedure for the recovery of customs duties, as provided in sections 514 and 515 of the Tariff Act of 1930; that internal revenue taxes on imported merchandise have been treated procedurally as duties; that section 3772 has no application to proceedings for the recovery of such taxes on imported merchandise; and that the provisions of section 528, Tariff Act of 1930, as added by the Customs Administrative Act of 1938, were not intended to take away the jurisdiction of the customs courts in cases involving the internal revenue laws in their application to imports. The motion to dismiss the protest herein is, therefore, denied. The evidence in this case shows that the merchandise" }, { "docid": "22253009", "title": "", "text": "to them,” and summed up with the following statement: * * *. Consequently, where a portion of the shipment * * * does not arrive here, and hence does not come under the possession and cognizance of the customhouse officers, it cannot, as heretofore shown, be taxed on any ground of law or of truth and propriety, and does not therefore require for its exemption any positive enactment by Congress. The court further announced the general rule in this class of cases as follows: * * * a deduction must be made from the quantity shipped abroad, whenever it does not all reach the United States, or we shall in truth assess here what does not exist here. The collection of revenue on an article not existing, and never coming into the country, would be an anomaly, a mere fiction of law, and is not to be countenanced where not expressed in acts of Congress, nor required to enforce just rights. Thus it would seem that article 812, as appearing in. the Customs Regulations of 1937, was promulgated in view of the principles announced by our Supreme Court rather than under any positive enactment by Congress.. Recognizing the rule of legislative sanction of judicial interpretation, section 624 may be regarded as granting powers broad enough to embrace the regulation in question. In Lentini v. United States, T. D. 43599, such regulations promulgated under the general power granted in the statute to make rules and regulations for the collection of the revenues, were held regulative or administrative merely and not conditions precedent to the right of exemption from duty. A few decisions according with this view may be here mentioned. In Oats American Co., Inc. v. United States, Abstract 24001, involving a shortage of cassia, duty was .assessed because the importer failed to file the necessary affidavit of nonimportation. The official papers showed that the discharging inspector had reported seven bales not found and the official weight report showed that those seven bales wére not delivered to the surveyor for weighing. The court held that allowance should be granted, the uncontradicted" }, { "docid": "6635358", "title": "", "text": "protests enumerated above, consists of crude petroleum, topped crude petroleum or fuel oil derived from petroleum (including fuel oil known as gas oil) imported during the calendar year 1951 or the calendar year 1952 prior to October 11, 1952, from countries other than the Kingdom of The Netherlands, that said merchandise and all the material facts with respect to the importation and assessment of tax thereon are similar in all material respects to the merchandise and the material facts with respect to its importation and the assessment of tax thereon which were the subject of Esso Standard Oil Company v. United States, C.D. 2314, 48 Cust. Ct. Reports 54, wherein it was held that the merchandise there involved was assessable with an internal revenue tax of only % cent per gallon under Sec. 3422, I.R.C. of 1939 as modified by T.D. 50015 and T.D.51802. IT IS FUETHEE STIPULATED AND AGEEED that the record in C.D. 2314, supra, be incorporated with the record in these protests and that the protests be submitted on this stipulation, each and every, protest being limited to 30 per centum of the quantity of merchandise imported and abandoned as to the remainder. IT IS FUETHEE STIPULATED AND AGEEED that if any of the three protests enumerated above refer to any merchandise that was not imported during the calendar year 1951 or the calendar year 1952, prior to October 11, 1952, it may be deemed abandoned. In view of this stipulation and on the authority of the decision cited, we hold that the commodities herein in the amount of 30 per centum of the quantity imported are properly subject to internal revenue tax at 14 cent per gallon under section 3422 of the Internal Revenue Code of 1939, as modified. As to the remainder of the merchandise, the protests, having been abandoned, are dismissed. Judgment will be rendered accordingly." }, { "docid": "22725531", "title": "", "text": "of 25 per centum ad valorem, an additional claim for duty at the rate of 20 per centum ad valorem under the provision in paragraph 1558 for nonenumerated manufactured articles is included in each protest. This claim, while not specifically pressed, was not abandoned. The claim does not appear in the protests covering the merchandise which was assessed with duty at the rate of 12}( per centum ad valorem under paragraph 1519 (a), as modified. The record made on the trial of the issues herein presents afresh the issues presented in the case of Kung Chen Fur Corp. v. United States, decided by a majority of the first division of this court — the writer dissenting — on January 13, 1950, in favor of the plaintiff’s claim, the said decision being reported in 24 Cust. Ct. 24, C. D. 1203. Upon appeal by the defendant, the decision was affirmed by our appellate court under the style of United States v. Kung Chen Fur Corporation, reported in 38 C. C. P. A. (Customs) 107, C. A. D. 447. It was stipulated and agreed between counsel in the case at bar that the merchandise covered by the protests and entries listed in the protest schedule, which is attached hereto and made a part of this decision, is in all material respects the same as the merchandise the subject of the Kung Chen Fur Corp. case, supra. The record in that case was incorporated as part of the record in the instant case by agreement of counsel, and the plaintiff thereupon rested. The defendant then offered the testimonial evidence of 14 additional witnesses, and the plaintiff offered the evidence of 5 witnesses in rebuttal. In the incorporated case, the majority of this court, and the majority of the Court of Customs and Patent Appeals on appeal thereto, were of the opinion that the processes to which the kidskins involved had been subjected in China prior to being sewn into plates (the so-called “China dressing process”) did not dress the same within the meaning of the term “dressed,” as used in the provision for" }, { "docid": "5579037", "title": "", "text": "in section 10.1(a) (1) if he is satisfied by the production of other evidence as to the existence of all the facts upon which the entry of the merchandise under paragraph 1615, Tariff Act of 1930, as amended, is dependent. * * * * * ***** * 10.3 Drawback; internal-revenue tax. — (a) Except as prescribed in paragraph (6), no free entry shall he allowed under paragraph 1615, Tariff Act of 1930, in the final liquidation of an entry unless the collector is satisfied by the certificate of exportation or other evidence or information that no drawback was allowed in connection with the exportation from the United States, * * *. In the absence of satisfactory evidence or information as to the allowance or nonallowance of drawback, * * * on any article of United States origin, the entry shall be liquidated with the assessment of duty equal to the total duty * * * imposed with respect to the importation of like articles not previously exported from the United States. * * * If an allowance of drawback on the exportation from the United States of the imported article is established, duty shall be assessed in an amount equal to such drawback, * * *; but in no ease shall duty equal to drawback, * * * be assessed in an amount in excess of the ordinary customs duty * * * applicable to like articles of foreign origin. * * * At the trial, the protest was abandoned as to the merchandise covered by withdrawal numbers 5678, 269, and 476. It was stipulated that all of the aluminum sheets represented by the items marked on the withdrawal papers by the customs inspector “A,” “E,” “EL,” or “Alcoa” were of American origin; that those marked “X” were of foreign origin; and that those marked “A,” “E,” or “EL” were returned to the United States without having been advanced in value or improved in condition while abroad. Customs Form 4467, the certificate of exportation, the filing of which is required by the regulations, has not been produced nor has its" }, { "docid": "22103702", "title": "", "text": "respects to what is known in this country as “Cellophane.” For the purpose of simplifying our discussion herein, the product will be referred to hereinafter as “Cellophane,” as it is cellophane by another name. As imported, this merchandise consists of rolls of “Cellophane” 2%6 inches wide on at paper core 3 inches in diameter, the entire roll measuring about 1 foot in diameter. The “Report of the Collector on Protest,” dated June 3,. 1949, in connection with this importation, filed with the papers herein,, contains the following statement: The Appraiser at this port reports, under date of Jan. 23, 1948, as follows r. “Invoices the subject of protest, cover cellulose, pyroxylin coated, film, exceeding one inch in width, not exceeding 3/1000 of one inch in thickness. These reels-were classified at 400 per lb. Par. 31 (b) (1) in accordance with Bureau of Customs-letter 418.3, 4/15/48.” [Obviously, this should be 1947.] Under date of Apr. 7, 1948, “The Bureau has been consistent in classifying sheets of cellophane cut. from larger sheets, as in this case, at 400 per lb. Par. 31 (b) (1). * * * Attached to the consular invoice covered by entry 4491 in the' present protest is a “Laboratory Report” signed by Louis Tanner, chief chemist at the port of Boston, reading as follows: The sample is a pyroxylin-coated cellophane strip exceeding one inch in width, not exceeding three one-thousandths of one inch in thickness. No oral testimony was introduced into this record, the case being-submitted upon a written stipulation entered into between counsel for the litigants. This somewhat lengthy stipulation, together with the-sample (plaintiff’s illustrative exhibit 1) and the reports heretofore-referred to, constitutes the entire record. This stipulation of fact in condensed form sets forth the details of paragraph 31 (b) (1), under which this material was classified, and sets forth the various claims-hereinabove referred to under which plaintiff claims this merchandise to be properly dutiable. It stipulates that this material, known by the trade name “Rayophane” is, in all material respects, similar to the-product manufactured in this country by Du Pont under the trade-name of “Cellophane.”" }, { "docid": "23641721", "title": "", "text": "McClelland, Presiding Judge: These protests were originally the subject of decision by this division of the court reported in Standard Oil Co. of Louisiana v. United States, C. D. 39. Within the time prescribed by section 518 of the Tariff Act of 1930 a motion for rehearing was made by counsel for the plaintiff, which was granted. On the rehearing the protests were submitted on the record originally made and a stipulation of additional facts. The statement of the facts and the issue in the opinion of the majority of this division reported as C. D. 39, supra, read as follows: We have here three protests each against the action of the collector of customs at the port of New Orleans assessing a tax at the rate of J4 cent per gallon under the provisions of Section 601 (c) (4) of the Revenue Act of 1932 on part of an importation of fuel oil which had been entered for warehouse. It is claimed in each of the protests that the oil in issue was withdrawn with the express purpose of being put on board of an American vessel engaged in foreign trade, and was therefore not subject to any duty or tax by virtue of section 630 of the Revenue Act of 1932. It is disclosed by the record made on the hearing of these protests that 2,722,110 gallons of fuel oil were imported into the port of New Orleans on the Motorship Cleopatra on December 24, 1935, and that, among others, three withdrawals were made therefrom, one on December 30, 1935, of 316,968.86 gallons, of which 183,361.92 gallons were sold to the Mississippi Shipping Co. and supplied to the S. S. Delmundo, and two on January 6, 1936, of 281,293.32 and 140,511.42 gallons, respectively, of which a total of 253,080.24 gallons were sold to the Mississippi Shipping Co. and supplied to the S. S. Delmundo. Following these withdrawals and on February 18, 1936, the collector liquidated the entry, assessing a tax, as aforesaid, at the rate of cent per gallon under the provisions of section 601 (c) (4) of" }, { "docid": "4698248", "title": "", "text": "paragraph 813 provides as follows: Par. 813. Notwithstanding any other provision of this Act, the duties imposed on beverages in this schedule which are subject also to internal revenue taxes shall be imposed only on the quantities subject to such taxes. Sec. 2. This amendment shall be effective as to all such merchandise entered, or withdrawn from warehouse, for consumption on or after the day following the date of the enactment of this Act and shall apply also to any such merchandise entered or withdrawn before that day with respect to which the liquidation of the entry or withdrawal, the exaction, or the decision as to dutiable quantity has not become final by reason of section 514, Tariff Act of 1930. At the trial, Frank W. Schoeppe, liquidator at the port of Los Angeles, testified that, when the entry was originally liquidated, duty was assessed at $2.50 per gallon on 5,967.6 gallons and internal revenue tax at $9 per gallon on 5,963 gallons. As a result of the protest filed on August 3, 1944, the entry was reliqui-dated and duty assessed on 5,931.6 gallons and internal revenue tax on 5,772.8 gallons. At the conclusion of the trial, counsel for the Government moved to dismiss the protest as to the claim under Public Law 612, supra. Decision on the motion was reserved. The sole question involved herein is whether duty on the imported brandy should be assessed only on the quantity subject to internal revenue tax by reason of Public Law 612, supra. The Government claims it should not, on the ground that the original protest was not subject to amendment to add a claim under Public Law 612, since the protest of August 3, 1944, had already raised the question of dutiable quantity; that the reliquidation in accordance with that protest was final as to dutiable quantity; that no question as to said quantity was pending when Public Law 612 was enacted; that, therefore, the retroactive provision thereof was not applicable. Like contentions were before the courts in The Josebra Company v. United States, 29 Cust. Ct. 244, C. D." }, { "docid": "22608756", "title": "", "text": "Johnson, Judge: The merchandise the subject of this suit consists of distilled dry gin imported from Cuba. Duty was assessed at the rate of $2 per gallon of 100 proof under the provisions of paragraph 802 of the Tariff Act of 1930, as amended by the trade agreement with the United Kingdom, 54 Stat. 1897 (T. D. 49753), wherein the tariff rate was reduced from $5 per proof gallon to $2.50 per proof gallon. Having been imported as a product of Cuba, the trade agreement with Cuba, 49 Stat. 3559 (T. D. 47232), became operative as to the 20 per centum preferential rate granted such products under the terms of that agreement, thus reducing the duty to $2 per proof gallon. The plaintiff claims that duty was levied upon a quantity in excess of the amount found upon importation; that duty should have been assessed upon the quantity of gin cleared from the free zone; and that there was no breakage, leakage, or damage. At the trial the protest was amended to include the further claim that— * * * customs duties should be assessed and collected only on the quantity of liquor or other beverages, subjected to final assessment of Internal Revenue Taxes, pursuant to Public Law No. 612. At the trial counsel for both sides agreed to the following facts: Mb. Colbubn: * * * That the merchandise herein consisted of 50 wooden barrels, containing distilled dry gin, a product of Cuba, entered for consumption from Foreign Trade Zone #1 after being weighed and sampled. Liquidation was based on the gauger’s and laboratory report; That Internal Revenue Tax at $9 per gallon was assessed on a net quantity equal to 2,474.4 proof gallons; that Customs duty at $2 per gallon was assessed on a net quantity of 2,494.52 proof gallons. * * * * * * * Mr. Vitale: * * * After carefully studying the official file in this case, and conferring with the Customs officials, the Government is willing to so stipulate. The plaintiff relies upon the claim that by reason of the enactment of Public" }, { "docid": "20096651", "title": "", "text": "allowance sought by the plaintiff in duties taken upon the merchandise found short by the discharging inspector in case 913 was not contested by the Government. That the plaintiff should not be assessed with duty upon merchandise which has not actually been imported into the United States, there can be no question. In the case of United States v. Browne Vintners Co., Inc., 34 C. C. P. A. 112, C. A. D. 351, the court held that the issue in shortage cases is not whether there was a compliance with the customs regulations but whether or not there was in fact a nonimportation of the goods, as claimed by the importer, and the burden of proof was upon the importer. Reviewing the law as announced by the courts as.to merchandise in the same status as that contained in case 913, it is clear that no duty is assessable upon the handkerchiefs missing from that case. The evidence is also clear, with reference to case 912, that it was taken directly from customs custody and was under the constant surveillance and personal observation of one of the witnesses until examined by the receiving clerk immediately upon receipt, and the contents checked with the invoice and such portion as is at issue herein found missing. Therefore, we are unable to come to any conclusion other than that the evidence presented establishes -prima facie, at least, that at the time the case was unladen from the vessel the merchandise missing therefrom was short to the extent claimed by the importer. In the case of Meadows, Wye & Co. v. United States, 12 Ct. Cust. Appls. 396, T. D. 40583, the discharging inspector found four large boxes of the imported goods in bad order, examined the contents, and listed the same, forwarding the list to the collector. All of the boxes in the shipment had remained on the pier longer than usual after unlading. Truckmen delivering the boxes established that they were not tampered with while in their care. Several witnesses testified that the cases on the pier were in bad order. Undisputed evidence" }, { "docid": "22667492", "title": "", "text": "In addition, it would permit allowance for losses occurring after importation but before the goods had been released from bond for consumption. The following excerpt is taken from the report of the Treasury Department:'. The Treasury Department recommends the enactment of such a bill as it would relieve the Bureau of Customs of the present administrative difficulties which result from the assessment of duties on imported liquors on a basis differing from that it is required to use by virtue of section 2800 (a) (1) of the Internal Revenue Code in assessing internal-revenue taxes on such liquors. Broadly speaking, paragraph 813 of the tariff act requires that duties be assessed on the quantity of liquor shipped from the foreign country whereas under section 2800 (a) (1) internal-revenue taxes are assessed on the quantity actually delivered to the importer. This results in the serious administrative difficulties attendant upon a multiplicity of gagings and redeterminations. (Italics ours) Following tbe passage of the foregoing act, the Secretary of the Treasury promulgated new regulations governing the determination of duties and tax on distilled spirits. It is significant that those regulations made clear that the duty and tax were to be assessed and collected only on the quantity established to be entered for consumption or withdrawal from warehouse for consumption. T. D. 51944; Customs Regulations of 1943, sections 16.5 (a) and (d). We deem it unnecessary to discuss this case further. It is manifestly certain that the bottle of whiskey in question was not withdrawn for consumption and any tax thereon was illegally imposed. For the reasons herein stated, the judgment of the United States Customs Court is affirmed. JacKson, J., retired, recalled to participate herein in place of Johnson, J. Report No. 1919, Committee on Ways and Means, 80th Congress, 2d Session; Senate Report No. 1421, Committee on Finance, 80th Congress, 2d Session," }, { "docid": "14596961", "title": "", "text": "Richardson, Judge: The merchandise at bar consists of asphalt of petroleum and residual fuel oil which were exported from Curacao, Netherlands West Indies, and entered at Boston, Mass. The merchandise was classified under the provisions of 19 U.S.C.A., section 1201, paragraphs 1710 and 1733 (paragraphs 1710 and 1733, Tariff Act of 1930, as amended), and the fuel oil was assessed with duty at the rate of one-half cent per gallon under the provisions of 26 U.S.CA., sections 3420 and 3422 (sections 3420 and 3422, Internal Eevenue Code of 1939). The instant protest was filed against the collector’s refusal to cancel his liquidation as requested by the importer, and liquidate the subject entry in accordance with requirements of the tariff act. It is claimed that by reason of clerical error the involved entry was liquidated prematurely. The protest was submitted to the court for decision upon a stipulation which reads as follows: IT IS HEREBY STIPULATED AND AGREED between the parties hereto, that the above enumerated protest involves an importation of fuel oil derived from petroleum, the product of the Kingdom of the Netherlands (including its overseas territories) entered for consumption at the Port of Boston, Mass., on May 4th, 1951. IT IS FURTHER AGREED that it was the practice of the Collector of Customs at the Port of Boston, Mass., to assess Internal Revenue tax on such imports in accordance with the provisions of the Venezuelan Trade Agreement reported in T.D. 50015, the quota amounts published in T.D. 52684, and the Bureau of Customs letter dated March 1st, 1951, a true and correct copy of which is marked “Exhibit 1” and attached to this stipulation. IT IS FURTHER STIPULATED that it was the practice of the Collector to withhold liquidations of entries such as that covered by this protest until receipt of notice from the Bureau of Customs telling him of the date upon which the quota amount allocated to the Kingdom of the Netherlands had been filled. IT IS FURTHER STIPULATED that the Collector was not notified of said date until he received Bureau of Customs letter dated August" }, { "docid": "22608763", "title": "", "text": "House report quotes at some length from the Treasury Department report on the proposed legislation, particularly stressing the purported administrative difficulties arising on account of assessments of duty on imported liquors being made on a different basis than the assessment of internal revenue taxes, necessitating “a multiplicity of gagings and redeterminations.” The Senate report of the Committee on Finance, exhibit 3, besides restating the report of the Committee on Ways and Means, also recommended that favorable action be taken upon the bill, declaring that the measure was needed to solve the difficulty of imposing duties on quantities of beverages which are lost through leakage, breakage, etc., while being transported into this country or before release from bond for consumption. Counsel for the plaintiff, relying solely upon Public Law 612, points out that the entry in the shipment in question was liquidated on October 31, 1945, and the protest was filed on November 16, 1945. Counsel stresses the fact that the filing of the protest operated to prevent the liquidation of the entry from becoming final by reason of section 514 of the Tariff Act of 1930. Inasmuch as the liquidation has not become final by reason of a protest against the collector’s liquidation having been filed in accordance with section 514, the sole contention of counsel for the plaintiff is that the provisions of Public Law 612 automatically apply to any merchandise involving alcoholic beverages covered by protests pending before this court. Paragraph 813 of the Tariff Act of 1930, as amended by the Customs Administrative Act of 1938, provided for the method used in assessing duty upon wines, liquors, cordials, or distilled spirits, before the passage of Public Law 612. Thereunder, all losses occurring by reason of breakage or other damage to the container were authorized if the importer filed an affidavit verifying the report of the gauger as to the quantity and condition of broken or injured casks or packages landed in the United States. Losses not occurring by reason of injury to the casks or packages were not authorized. Nor was there an authorization for any loss" }, { "docid": "4698249", "title": "", "text": "entry was reliqui-dated and duty assessed on 5,931.6 gallons and internal revenue tax on 5,772.8 gallons. At the conclusion of the trial, counsel for the Government moved to dismiss the protest as to the claim under Public Law 612, supra. Decision on the motion was reserved. The sole question involved herein is whether duty on the imported brandy should be assessed only on the quantity subject to internal revenue tax by reason of Public Law 612, supra. The Government claims it should not, on the ground that the original protest was not subject to amendment to add a claim under Public Law 612, since the protest of August 3, 1944, had already raised the question of dutiable quantity; that the reliquidation in accordance with that protest was final as to dutiable quantity; that no question as to said quantity was pending when Public Law 612 was enacted; that, therefore, the retroactive provision thereof was not applicable. Like contentions were before the courts in The Josebra Company v. United States, 29 Cust. Ct. 244, C. D. 1476, affirmed sub nom United States v. The Josebra Company, 41 C. C. P. A. (Customs) 206, C. A. D. 552, where a similar fact situation was involved. In that case, protests were filed against the action of the collector in failing to allow for breakage, leakage, or damage, and the resultant loss of spirits, under paragraph 813 prior to the amendment thereof. The protests were sustained, and the collector reliquidated in accordance with the judgment of the court. Other protests, directed against the basis upon which internal revenue taxes had been assessed and against the rate thereof were pending and were subsequently amended to include a claim under Public Law 612. That claim was sustained by the trial court and affirmed by the court of appeals. The trial court pointed out in its opinion that an importer is not restricted as to the number of protests he may file and that a reliquidation by the collector, in pursuance of a judgment involving the dutiable quantity of the merchandise, did not preclude the importer from" }, { "docid": "6635357", "title": "", "text": "order of April 1, 1964, established the law of the case to at least the degree that a party seeking to retry the issue it decided would have to move to vacate it and, being the moving party, would have to introduce evidence to show that the order should be vacated. No such evidence having been offered, what would have sufficed to get the order vacated is a moot question which need not be gone into. Defendant’s desire to cross-examine the affiant, Mr. Goodyear, does not relieve it of its burden. We note, however, that neither in oral argument before Judge Wilson, nor in the briefs, did counsel for defendant say that the Government is in possession of evidence tending to show that the Goodyear affidavit is false in any material respect. On the merits, counsel have submitted these cases on a stipulation reading as follows: IT IS HEBEBY STIPULATED AND AGEEED that the merchandise assessed with internal revenue tax under Sec. 3422, I.BC. of 1939, as modified, at % cent per gallon on the protests enumerated above, consists of crude petroleum, topped crude petroleum or fuel oil derived from petroleum (including fuel oil known as gas oil) imported during the calendar year 1951 or the calendar year 1952 prior to October 11, 1952, from countries other than the Kingdom of The Netherlands, that said merchandise and all the material facts with respect to the importation and assessment of tax thereon are similar in all material respects to the merchandise and the material facts with respect to its importation and the assessment of tax thereon which were the subject of Esso Standard Oil Company v. United States, C.D. 2314, 48 Cust. Ct. Reports 54, wherein it was held that the merchandise there involved was assessable with an internal revenue tax of only % cent per gallon under Sec. 3422, I.R.C. of 1939 as modified by T.D. 50015 and T.D.51802. IT IS FUETHEE STIPULATED AND AGEEED that the record in C.D. 2314, supra, be incorporated with the record in these protests and that the protests be submitted on this stipulation, each" }, { "docid": "23522560", "title": "", "text": "SHIPMAN, Circuit Judge. On March 3, 1887, E. S. Wheeler, doing business under the name of E. S. Wheeler & Co., of New Haven, Conn., imported by the vessel Westernland, and entered at the port of New York, a large quantity of iron wire fence rods. Subsequently the importer became insolvent, and Samuel E. Merwin was appointed trustee for the benefit of his creditors, and became vested with the title to his property. No question exists in the case as to the statutory rate of duty upon this merchandise, but the importer duly protested that the number of pounds upon which the duty was imposed was in excess of the actual number of pounds which were imported or which came into the port of New York. The collector’s decision was sustained by the secretary of the treas ury, and by an action at law, in which Mr. Merwin was plaintiff, the question duly came before the circuit court for the Southern district of Xew York and was tried to the jury. The invoice covered 7,382 bundles of rods, divided into 8 lots, one of which included 1,787 bundles marked “Nevins 4 blue.” The bill of lading, the steamer’s manifest, a.nd the original warehouse entry contained a similar statement of the number of rods. In the original warehouse entry, the figures 3,787 were changed to 1,570, and the total number in the bundles was changed from 7,382 to 7,166. It does not appear who made the alteration. The naval officer’s copy of the entry was not changed. The master of the vessel made oath to his manifest on March 3, 1887. In April, 1887, there was added, at the bottom of the manifest, the master’s oath or affidavit that 217 bundles of “Nevins 4 blue” were “short shipped.” This affidavit upou the manifest, the inspector’s official return, the weigher’s official return and the inspector’s certificate, when the goods were laden for transportation to Mew Haven, all which reported that 217 bundles were not found, were offered in evidence by the plaintiff. Neither the master nor any of these officials were examined" }, { "docid": "20096650", "title": "", "text": "* * * * * ' Sfc * Judge Johnson: It seems to me that might have some bearing on it as to whether shortages were prevalent at that particular place at that particular time. It can be shown whether there were shortages or cases tampered with the same day or about the same time. Mbs. Bennett: May I have an exception? A. There were quite a few. Counsel for the importer contends that duty is assessable only upon merchandise imported into the United States, and that the merchandise not found in either of the two cases in question was not imported. Therefore, duty is not assessable thereon. Counsel for the Government contends that the plaintiff has failed to establish that there was any shortage in case 912 at the time it was landed in the United States. It is further contended that as the delivery permit was issued 10 days before the shortage was discovered in case 912, such shortage should be inferred as occurring during the intervening period and not before landing. The allowance sought by the plaintiff in duties taken upon the merchandise found short by the discharging inspector in case 913 was not contested by the Government. That the plaintiff should not be assessed with duty upon merchandise which has not actually been imported into the United States, there can be no question. In the case of United States v. Browne Vintners Co., Inc., 34 C. C. P. A. 112, C. A. D. 351, the court held that the issue in shortage cases is not whether there was a compliance with the customs regulations but whether or not there was in fact a nonimportation of the goods, as claimed by the importer, and the burden of proof was upon the importer. Reviewing the law as announced by the courts as.to merchandise in the same status as that contained in case 913, it is clear that no duty is assessable upon the handkerchiefs missing from that case. The evidence is also clear, with reference to case 912, that it was taken directly from customs custody and was" }, { "docid": "22608764", "title": "", "text": "by reason of section 514 of the Tariff Act of 1930. Inasmuch as the liquidation has not become final by reason of a protest against the collector’s liquidation having been filed in accordance with section 514, the sole contention of counsel for the plaintiff is that the provisions of Public Law 612 automatically apply to any merchandise involving alcoholic beverages covered by protests pending before this court. Paragraph 813 of the Tariff Act of 1930, as amended by the Customs Administrative Act of 1938, provided for the method used in assessing duty upon wines, liquors, cordials, or distilled spirits, before the passage of Public Law 612. Thereunder, all losses occurring by reason of breakage or other damage to the container were authorized if the importer filed an affidavit verifying the report of the gauger as to the quantity and condition of broken or injured casks or packages landed in the United States. Losses not occurring by reason of injury to the casks or packages were not authorized. Nor was there an authorization for any loss even through breakage or other injury if the loss did not amount to 10 per centum of the value of the goods, as exported. As a matter of law, importations of liquors which do not involve such losses as were provided for under paragraph 813 are to be assessed with duty upon the basis of the gallonage reported by the gauger, acting within the scope of the regulations, as having been landed in this country. Where there are losses which amount to a nonimportation, no duty, of course, is assessable. Public Law 612, exhibit 4, is novel in that it departs from the long-established principle that duties shall not be assessed upon less than the imported or entered quantity. Hereafter, duties upon alcoholic beverages must be imposed upon the quantities which are subject to the levy of an internal revenue tax. Title 26, § 2800, U. S. Code, as amended, relative to the internal revenue tax upon distilled spirits, provides: § 2800. Tax — (a) Rate — -(1) Distilled spirits generally. There shall he levied" }, { "docid": "4698250", "title": "", "text": "1476, affirmed sub nom United States v. The Josebra Company, 41 C. C. P. A. (Customs) 206, C. A. D. 552, where a similar fact situation was involved. In that case, protests were filed against the action of the collector in failing to allow for breakage, leakage, or damage, and the resultant loss of spirits, under paragraph 813 prior to the amendment thereof. The protests were sustained, and the collector reliquidated in accordance with the judgment of the court. Other protests, directed against the basis upon which internal revenue taxes had been assessed and against the rate thereof were pending and were subsequently amended to include a claim under Public Law 612. That claim was sustained by the trial court and affirmed by the court of appeals. The trial court pointed out in its opinion that an importer is not restricted as to the number of protests he may file and that a reliquidation by the collector, in pursuance of a judgment involving the dutiable quantity of the merchandise, did not preclude the importer from prosecuting other protests, which likewise involved the question of dutiable quantity under other provisions of the statute. The only difference between that case and the one at bar is that, there, the collector reliquidated the earlier protests, in pursuance of a judgment, while here, he reconsidered the liquidation himself and decided that it was erroneous. In both cases, the later protests were pending within the.purview of section 514 of the Tariff Act of 1930 when Public Law 612 was enacted; therefore, the change effected by the new legislation is applicable to the merchandise involved herein. We hold that duty on the instant merchandise is assessable only upon the quantity subject to internal revenue tax. The Government’s motion to dismiss the protest as to the claim under Public Law 612 is denied, and said claim is sustained. Judgment will be rendered accordingly." }, { "docid": "22608757", "title": "", "text": "claim that— * * * customs duties should be assessed and collected only on the quantity of liquor or other beverages, subjected to final assessment of Internal Revenue Taxes, pursuant to Public Law No. 612. At the trial counsel for both sides agreed to the following facts: Mb. Colbubn: * * * That the merchandise herein consisted of 50 wooden barrels, containing distilled dry gin, a product of Cuba, entered for consumption from Foreign Trade Zone #1 after being weighed and sampled. Liquidation was based on the gauger’s and laboratory report; That Internal Revenue Tax at $9 per gallon was assessed on a net quantity equal to 2,474.4 proof gallons; that Customs duty at $2 per gallon was assessed on a net quantity of 2,494.52 proof gallons. * * * * * * * Mr. Vitale: * * * After carefully studying the official file in this case, and conferring with the Customs officials, the Government is willing to so stipulate. The plaintiff relies upon the claim that by reason of the enactment of Public Law 612 duties should have been collected only upon the quantity subject to the final assessment of internal revenue taxes. Public Law 612 originated in the House of Representatives through the introduction of a bill, H. R. 5965, on March 23, 1948. It was referred to the Ways and Means Committee where same was reported favorably with an amendment on May 11, 1948, and brought up for consideration in the House of Representatives on May 18, 1948. This bill, in effect, repealed paragraph 813 of the Tariff Act of 1930, and reduced the duties on alcoholic beverages by imposing duties only on quantities subject to internal revenue taxes. Furthermore, the amendment under Public Law 612 was retroactive in effect, inasmuch as it not only applied to future importations but included such alcoholic beverages as were covered by entries the collector had liquidated where the collector’s action had not become final by reason of the filing of protests against such action. Under section 514, a protest may be filed against the action of the collector within" } ]

[ { "docid": "14206067", "title": "", "text": "under any circumstances. That was not, in our view, the law before Branzburg, and it is certainly not the law after, in either civil or criminal proceedings. Affirmed. . Appellant’s counsel made it clear in the deposition transcript that he was limiting his non-disclosure instruction to those eyewitness sources who “have been or are now employed by the United Mine Workers.” The witness was permitted to give the names of sources of information who were Government employees, but this information did not relate to the observation of removal of records from the UMW offices. The grounds asserted by counsel at that time as supporting his instruction to appellant were that there was fear of retaliation against UMW employees, and that the First Amendment rights of appellant as a newsman afforded him a privilege not to reveal confidential sources. . In addition to Branzburg, which involved two judgments of the Kentucky Court of Appeals, the Supreme Court by one opinion also decided In re Pappas [408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626] from the Supreme Judicial Court of Massachusetts, and United States v. Caldwell, 434 F.2d 1081, from the Ninth Circuit. The Supreme Judicial Court of Massachusetts, whose decision in In re Pappas to compel a newsman to testify before a grand jury was sustained by the Supreme Court, has recently held that a journalist must, in the course of pretrial discovery in a tort action for libel, respond to questions seeking the identity of the sources of information used in the writing of the allegedly defamatory news story. Dow Jones & Co. v. Superior Court, Mass., 303 N.E.2d 847 (1973). . In an earlier stage of this litigation there was some intimation by appellee that he was not a public figure within the reach of Sullivan. He has since, however, expressly disclaimed that position. See Curtis Publishing Company v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In any event, because of the recent focus of public attention upon .the affairs of the United Mine Workers, there would seem to be no question as to" } ]

[ { "docid": "14616861", "title": "", "text": "in our own cases. It is important to note that Justice White’s opinion is not a plurality opinion. Although Justice Powell wrote a separate concurrence, he also signed Justice White’s opinion, providing the fifth vote necessary to establish it as the majority opinion of the court. See Branzburg, 408 U.S. at 665, 92 S.Ct. at 2648-49. The Court stated: Until now the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do. Fair and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process. On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial. Id. at 689-91, 92 S.Ct. at 2661. Moreover, although Justice Powell’s concurrence itself refers to “interest balancing,” it does not suggest that in each case there must be balancing of the particular information sought versus the newsman’s request for confidentiality. The concurring opinion states: As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will be tolerated. If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have" }, { "docid": "9549669", "title": "", "text": "ALVIN B. RUBIN, Circuit Judge: A discharged school official, seeking to recover compensatory and punitive damages from a school district and two of its officers for publicizing false and stigmatizing charges against him, contends that the two officers disseminated the defamatory charges by secretly imparting them to a newspaper reporter and that, as a result, the reporter made open inquiries that resulted in publication of the charges. The discharged official contends that he was denied due process by the failure of the school district to afford him a hearing on the charges and a chance to prove his innocence. After proceedings to assure that whether the school district’s officers were the source of the reporter’s information was central to the claim; that circumstantial evidence pointed to a school district officer or employee as the communicant; and that alternative ways of confirming that hypothesis had been exhausted, the district court ordered that the journalist testify in camera and there respond to narrowly limited questions directed only to ascertaining ■whether a school district officer was the source of his information. Upon his refusal to do so, the court cited the reporter for civil contempt. The reporter appeals, invoking the journalist’s qualified privilege under the first amendment not to reveal his confidential sources. Despite the care taken by the district court, we find that the necessity of obtaining the information was not yet established and the reporter’s qualified privilege, therefore, not yet overcome. We, therefore, vacate the contempt decree. I. We have recognized that the first amendment shields a reporter from being required to disclose the identity of persons who have imparted information to him in confidence. Miller v. Transamerican Press, 621 F.2d 721 (5th Cir.), modified on rehearing, 628 F.2d 932 (5th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 238 (1981). Our course was dictated by our careful reading of the plurality and concurring opinions in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). The privilege, we held, is not absolute, but qualified. In libel cases, it can be overcome, but only if" }, { "docid": "5065673", "title": "", "text": "between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions. Branzburg v. Hayes, 408 U.S. 665, 710, 92 S.Ct. 2646, 2671, 33 L.Ed.2d 626 (1972) (Powell, J., concurring). Accordingly, the reporter’s privilege will be upheld unless the information sought is necessary to a just resolution of the case, and it cannot be obtained by alternative means. See Carey v. Hume, 160 U.S.App.D.C. 365, 492 F.2d 631 (D.C.Cir.1972), cert. dismissed, 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974). The defendants contend that the reporter’s privilege does not apply to this case because Mr. Robinson has been subpoenaed regarding a book he is writing for his own personal gain and not for The Washington Post The Court must reject any distinction on such grounds. First, the fact that the news gathering is conducted for financial gain is irrelevant. Reporters normally receive salaries for their news gathering efforts, Such financial gain does not taint the importance of the services to our cherished first amendment goals. Second, the reporter’s privilege must encompass all news gathering efforts, not simply those for newspapers: “The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.” Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938). Finally, the defendants contend that the proceedings in New York Times v. Jascalevich, 439 U.S. 1301, 98 S.Ct. 3058, 3060, 58 L.Ed.2d 9 (1978), have somehow modified the Supreme Court’s decision in Branzburg. The refusal of Justices White and Marshall to stay the order of the Supreme Court of New Jersey was plainly not a ruling on the merits. Furthermore, Justice White indicated his belief that the Court had never ruled on the issue whether “the obligation to obey an otherwise valid subpoena served on a newsman is conditioned upon the showing of special circumstances.” 98 S.Ct. at 3060. In the" }, { "docid": "5320398", "title": "", "text": "the Court’s holding,” were emphasized more strongly still by Justice Powell — the fifth member of the majority — in his concurring opinion: The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources. * * * As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will be tolerated. * * * Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective Order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions. In short, the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection. Id. at 709-710, 92 S.Ct. at 2671 (emphasis added; footnote omitted). While reporters have, since Branzburg, been required on some occasions to disclose confidential sources in grand jury investigations and at trials, the courts have consistently read Branzburg as recognizing the First Amendment interests of reporters in confidentiality and as requiring a judicial balancing before disclosure is ordered. For example, in Farr v. Pitchess, 522 F.2d 464, 467-468 (9th Cir. 1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1203 (1976), the Ninth Circuit stated: It is clear that Branzburg recognizes some First Amendment protection of news sources. * * * The precise holding of Branzburg subordinated the right of the newsmen to keep secret a source of information in face of the" }, { "docid": "10573387", "title": "", "text": "when the “grand jury investigation is not being conducted in good faith.” Branzburg, 408 U.S. at 710, 92 S.Ct. at 2671 (Powell, J., concurring). Justice Powell reasoned that “if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash.” Id. Justice Powell had in mind the “harassment of newsmen.” Id. at 709, 92 S.Ct. at 2671; see also In re Grand Jury Proceedings, 5 F.3d 397, 401 (9th Cir.1993) (reading Branzburg and concluding that Justice Powell meant only to protect newsreporters from intentional harassment by the government), cert. denied, 510 U.S. 1041, 114 S.Ct. 685, 126 L.Ed.2d 652 (1994); In re Grand Jury Proceedings, 810 F.2d 580, 587-88 (6th Cir.1987) (same). In the end, Justice Powell’s concurrence highlighted a limit on the government’s subpoena power also recognized by the plurality opinion. See Branzburg, 408 U.S. at 699-700, 92 S.Ct. at 2665-66 (noting that the Court was not reaching the question of an abusive grand jury investigation). It did not argue for a general qualified privilege for newsre-porters in criminal cases. A single subpoena issued only after considered decision by the Attorney General of the United States to compel production of evidence at a federal trial of a multicount felony indictment is no harassment. Calling it such presupposes a clear privilege. On the facts, that is not this ease. WDSU-TV is not here seeking a privilege against disclosing confidential source information, which the Court rejected in Branzburg. Rather, it argues that journalists deserve a qualified privilege in their nonconfidential work product, so as to protect the media as an institution. According to WDSU-TV, such a privilege would be akin to the attorney work-product privilege, designed to promote effective representation of clients, and the executive privilege, intended to aid the operation of the executive branch. WDSU-TV argues that it deserves a similar, “institutional” privilege, because even" }, { "docid": "19858531", "title": "", "text": "obtained, or both. If a news station or newspaper is forced to reveal the confidences of its reporters, the sources so disclosed, other confidential sources of other reporters, and potential confidential sources will be significantly deterred from furnishing further information to the press. Information lost to the press is information lost to the public; unnecessary impediments to a newsman’s ability to gather facts, follow leads, and assimilate sources can restrict the quality of our news as effectively as censorship activities. Accordingly, the Court holds that the First Amendment, protecting as it does the free flow of information, provides newsmen a privilege from revealing their confidential news sources in civil proceedings that may be abrogated only in rare and compelling 'circumstances. See Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972); Baker v. F&F Investment Company, 470 F.2d 778 (2d Cir. 1972); Loadholtz v. Fields, 389 F.Supp. 1299 (M.D.Fla.1975); Democratic National Committee v. McCord, 356 F.Supp. 1394 (D.C.1973); Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78 (E.D.N.Y.1975); Brown v. Commonwealth, 214 Va. 755, 204 S.E.2d 429 (1974); State of Vermont v. St. Peter, 132 Vt. 266, 315 A.2d 254 (1974). See also United States v. Liddy, 354 F.Supp. 208, 213 (D.C.1972). Branzburg v. Hayes, as contended, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) is not apposite. In Branzburg, the Supreme Court held that newsmen are required to respond to grand jury subpoenas, and answer questions relevant to an investigation into the commission of a crime, though it forces the newsmen to reveal confidential sources and material. The Court did not, however, hold that the First Amendment offers no protection to the press from subpoenas. The majority opinion, written by Mr. Justice White, and joined by Justices Blackmun, Rehnquist and Chief Justice Burger, expressly limited the scope of the opinion to grand jury subpoenas. 408 U.S. at 682, 92 S.Ct. at 2656, 33 L.Ed.2d at 639. Furthermore, even in the grand jury setting, it is clear that the First Amendment has application to afford newsmen some constitutional protections. Nor is it suggested that news gathering does not qualify" }, { "docid": "22047339", "title": "", "text": "our analysis set forth above, we distill the essential characteristics of one entitled to invoke the journalist’s privilege. We hold that the individual claiming the privilege must demonstrate, through competent evidence, the intent to use material — sought, gathered or received — to disseminate information to the public and that such intent existed at the inception of the newsgathering process. This requires an intent-based factual inquiry to be made by the district court. The intended manner of dissemination may be by newspaper, magazine, book, public or private broadcast medium, handbill or the like, for “[t]he press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.” Lovell v. Griffin, 303 U.S. 444, 452 (1938). Although prior experience as a professional journalist may be persuasive evidence of present intent to gather for the purpose of dissemination, it is not the sine qua non. The burden indeed may be sustained by one who is a novice in the field. Further, the protection from disclosure may be sought by one not traditionally associated with the institutionalized press because “[t]he informative function asserted by representatives of the organized press ... is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists.” Branzburg v. Hayes, supra, 408 U.S. at 705. It is beyond peradventure that “[l]iberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.” Id. at 704. The primary relationship between the one seeking to invoke the privilege and his sources must have as its basis the intent to disseminate the information to the public garnered from that relationship. To this end, the source may be confidential or non-confidential. C. This brings us to the disposition of Reynolds’ claim to the journalist’s privilege in the case before us. As stated above, the burden was on Reynolds to establish that she had those characteristics which we have delineated as the essential attributes of a journalist. She failed to sustain her burden. We consider, first," }, { "docid": "15108259", "title": "", "text": "ambit of its discretionary authority when it denied appellants’ motion to compel discovery. Compelling a reporter to disclose the identity of a confidential source raises obvious First Amendment problems. The First Amendment guarantees a free press primarily because of the important role it can play as “a vital source of public informa tion.” Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 80 L.Ed. 660 (1936). “The press was protected so that it could bare the secrets of government and inform the people.” New York Times Co. v. United States, 403 U.S. 713, 717, 91 S.Ct. 2140, 2143, 29 L.Ed.2d 822 (1971) (Black, J., concurring). Without an unfettered press, citizens would be far less able to make informed political, social, and economic choices. But the press’ function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired. Compelling a reporter to disclose the identity of a source may significantly interfere with this news gathering ability; journalists frequently depend on informants to gather news, and confidentiality is often essential to establishing a relationship with an informant. In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the Supreme Court held that a journalist does not have an absolute privilege under the First Amendment to refuse to disclose confidential sources to a grand jury conducting a criminal investigation, despite the potential interference with news gathering. The Court justified this decision by pointing to the traditional importance of grand juries and the strong public interest in effective criminal investigation. It recognized, however, that because news gathering is essential to a free press, it deserves some First Amendment protection. Thus the Court indicated that a qualified privilege would be available in some circumstances even where a reporter is called before a grand jury to testify. 408 U.S. at 707, 92 S.Ct. at 2669 Moreover, Justice Powell, who cast the deciding vote in Branzburg, wrote a concurring opinion in which he stated that courts can determine whether a privilege applies by using a balancing test: The asserted claim to privilege" }, { "docid": "5065671", "title": "", "text": "called by the defendants have been uniformly vague in recalling particulars of the briefing, only one agent took notes, no recording of the briefing was made, and the Court has quashed subpoenas of two of the participants — namely, Assistant United States Attorneys Banoun and Schuelke. Accordingly, the defendants contend that they have exhausted alternative sources for the information, and must have access to the reporter and his notes. II. NEWS GATHERING BY THE PRESS IS PROTECTED BY A QUALIFIED FIRST AMENDMENT PRIVILEGE. The United States Supreme Court confronted the issue of a reporter’s privilege on only a single occasion: Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). The issue before the Court in Branzburg was whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the first amendment. The Court held that it did not. However, the vote which determined the outcome in Branzburg was cast by Justice Powell, and his concurring opinion has inspired the courts to engage in a case-by-case balancing of interests in order to determine whether a reporter will be required to testify. See Bursey v. United States, 466 F.2d 1059, 1083 (9th Cir. 1972); Brown v. Commonwealth, 214 Va. 755, 204 S.E.2d 429 (Va.1974); State v. St. Peter, 315 A.2d 254, 256 (Vt.1972); Zelenka v. State, 83 Wis.2d 601, 266 N.W.2d 279, 287 (Wisc.1978). Justice Powell’s concurring opinion in Branzburg provides, in part: If a newsman believes that the grand jury investigation is not being conducted, in good faith he is not without remedy. Indeed, if the newsman is;called upon to give information bearing only a. remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance" }, { "docid": "9549698", "title": "", "text": "9 Med.L.Rep. 1013 (W.D.N.Y.1982) (journalist who witnessed and reported on assault not excused from testifying before grand jury as to what he observed); State v. Knorr, 8 Med.L.Rep. 2067 (Or.Cir.Ct.1982); Rosato v. Superior Court, 51 Cal.App.3d 190, 218, 124 Cal.Rptr. 427, 446 (1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1204 (1976) (Supreme Court has denied that first amendment shields newsmen from testifying about criminal activity they observed); People v. Dan, 41 App.Div.2d 687, 342 N.Y.S.2d 731, appeal dismissed, 32 N.Y.2d 764, 344 N.Y.S.2d 955, 298 N.E.2d 118 (1973) (newsmen may refuse to divulge to grand jury identity of informant, but they must testify about events they observed personally, including identity of people they observed); Lightman v. State, 15 Md.App. 713, 294 A.2d 149, 156-57, aff'd per curiam, 266 Md. 550, 295 A.2d 212 (1972), cert. denied, 411 U.S. 951, 93 S.Ct. 1922, 36 L.Ed.2d 414 (1973) (when newsman observes criminal activity, he, not the people observed, is the source of information, and he can be directed to disclose identity of people observed); State v. Knops, 49 Wis.2d 647, 183 N.W.2d 93 (1971) (privilege not to reveal confidential sources must yield to public’s need to know those sources whom reporter has intimated were responsible for bombing university building); Branzburg v. Pound, 461 S.W.2d 345 (Ky.App.1970), aff’d sub nom. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (reporter’s privilege under state law not to reveal source of published information does not protect reporter from testifying about events he observes personally, including identity of people observed); see generally Goodale, Branzburg v. Hayes and the Developing Qualified Privilege for Newsmen, 26 Hastings L.J. 709 (1975)." }, { "docid": "11177318", "title": "", "text": "national security, but who is charged with having endangered it instead. The subpoena for Risen’s testimony was not issued in bad faith or for the purposes of harassment. See id. at 707-08, 92 S.Ct. 2646; id. at 709-10, 92 S.Ct. 2646 (Powell, J., concurring). Risen is not being “called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation,” and there is no “reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement.” Id. at 710, 92 S.Ct. 2646 (Powell, J., concurring). Nor is the government attempting to “annex” Risen as its “investigative arm.” Id. at 709, 92 S.Ct. 2646 (internal quotation marks omitted). Rather, the government seeks to compel evidence that Risen alone possesses — evidence that goes to the heart of the prosecution. The controlling majority opinion in Branzburg and our decision in Shain preclude Risen’s claim to a First Amendment reporter’s privilege that would permit him to resist the legitimate, good faith subpoena issued to him. The only constitutional, testimonial privilege that Risen was entitled to invoke was the Fifth Amendment privilege against self-incrimination, but he has been granted immunity from prosecution for his potential exposure to criminal liability. Accordingly, we reverse the district court’s decision granting Risen a qualified First Amendment reporter’s privilege that would shield him from being compelled to testify in these criminal proceedings. III. The Common-Law Privilege Claim Risen next argues that, even if Branzburg prohibits our recognition of a First Amendment privilege, we should recognize a qualified, federal common-law reporter’s privilege protecting confidential sources. We decline to do so. A. In the course of rejecting the First Amendment claim in Branzburg, the Supreme Court also plainly observed that the common law recognized no such testimonial privilege: it is thus not surprising that the great weight of authority is that newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation. At common law, courts consistently refused to recognize the existence of any privilege authorizing a newsman to" }, { "docid": "22117527", "title": "", "text": "must attempt to divine the contours of non-statutory federal law governing the compelled disclosure of confidential journalistic sources must rely on both judicial precedent and a well-informed judgment as to the proper federal public policy to be followed in each case. To inform his judgment concerning appropriate federal public policy in the area of a newsman’s privilege, Judge Bonsai looked to both New York and Illinois statutes governing newsmen’s rights. These two states — and there are others — have enacted legislation protecting a journalist from forced disclosure of his confidential sources. Both statutes were enacted after the publication of Mr. Balk’s article, but prior to the filing of appellant’s motion in the district court. In a memorandum to the Legislature approving New York’s “newsman’s privilege” statute, Governor Rockefeller stated: Freedom of the press is one of the foundations upon which our form of government is based. A representative democracy, such as ours, cannot exist unless there is a free press both willing and able to keep the public informed of all the news. The threat to a newsman of being charged with contempt and of being imprisoned for failing to disclose his information or its sources can significantly reduce his ability to gather vital information. . . This [legislation] affords a stronger safeguard of the free channels of news communication . by protecting newsmen from being compelled to disclose the information they gather, as well as the identity of their informants . . . . New York and Illinois State law, while not conclusive in an action of this kind, reflect a paramount public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters, an interest which has always been a principal concern of the First Amendment, see e. g., New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Compelled disclosure of confidential sources unquestionably threatens a journalist’s ability to secure information that is made available to him only on a confidential basis — and the district court so found. The deterrent" }, { "docid": "5320345", "title": "", "text": "each case against the Government’s interest in suppressing that publication. This was not why the Court stated that “judicial superintendence” was necessary. Rather, it was declared necessary to ensure that either before or soon after a prior restraint was placed on an allegedly obscene publication, there be a procedurally adequate hearing at which the fact of obscenity could be determined. . 408 U.S. 707-708, 92 S.Ct. at 2670 (footnote omitted). . Justice Powell’s concurring opinion in Branzburg is fully consistent with this analysis. It focuses on the concluding portion of the Court’s opinion and reiterates that there is a remedy available to reporters in the event of bad faith harassment: As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will be tolerated. If the newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to . . . implicate [ ] confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash . . .. 408 U.S. at 709-10, 92 S.Ct. at 2671 (emphasis added). Although Justice Powell refers to case-by-case “balancing,” it is clear that he is actually referring to the availability of judicial case-by-case screening out of bad faith “improper and prejudicial” interrogation. Indeed, this court has already so interpreted Justice Powell’s opinion in In re Possible Violations of 371, 641, 1503, 184 U.S.App.D.C. 82, 564 F.2d 567 (1977): The Branzburg decision did not leave newsmen completely without protection from indiscriminate probing for news sources. In particular, the Court observed that official harassment of the press undertaken solely to disrupt a reporter’s relationship with news sources would clearly be subject to judicial control. In a separate opinion, Mr. Justice Powell, who also concurred in the opinion of the Court, emphasized and elaborated upon this aspect of the majority opinion . We conclude that Branzburg squarely rejected the very privilege appellant asserts that it established. A newsman can claim no general immunity, qualified or" }, { "docid": "19858537", "title": "", "text": "the just functioning of our society, First Amendment rights require special safeguards. 408 U.S. at 738, 92 S.Ct. at 2678, 33 L.Ed.2d at 673. Mr. Justice Douglas, in his dissent, advocated an absolute First Amendment privilege for newsmen: My belief is that all of the “balancing” was done by those who wrote the Bill of Rights. 408 U.S. at 713, 92 S.Ct. at 2687, 33 L.Ed.2d at 658. The minimum common denominator of all the views expressed, is the opinion of Mr. Justice Powell, that a qualified First Amendment privilege does exist to protect newsmen’s confidential sources. In short, the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection. 408 U.S. at 710, 92 S.Ct. at 2671, 33 L.Ed.2d at 656. Justices Stewart, Douglas, and Powell differed on the strength of that privilege when weighed against the needs of our country’s criminal proceedings. In the context of a civil trial, the rationales for forcing a newsman to reveal his confidences are much less weighty than those involved in criminal proceedings. For example, in such a context, one cannot validly contend that a newsman is concealing the criminal conduct of his source, or shielding the anonymity of criminal figures. Allied’s purpose in securing the unpublished files of WLEE and WXEX-TV is primarily to obtain information that may aid in its trial preparation and presentation. Its need to obtain information in support of its proposed motion for a change of venue was satisfied by WLEE’s and WXEX-TV’s provision of all the items, both as to content and quantity, communicated to the public on the Kepone matter. The venue argument is based on the alleged prejudicial effects of the heavy.publicity on the subject matter of the case, and Nationwide’s contribution to such publicity has been disclosed in full. Indeed, the Court has in the course of other proceedings in connection with the case, expressed its cognizance of the almost daily publicity on the subject. We are left, therefore, solely with Allied’s contention that the materials are necessary for the purposes of general discovery. While there is a" }, { "docid": "18328402", "title": "", "text": "it provides information to the public in the same manner as does the press. The Association claims the quasi-privileged status sometimes afforded the press, citing Baker v. F & F Investment, 339 F.Supp. 942 (S.D. N.Y.), aff’d, 470 F.2d 778 (2d Cir. 1972), in which the court denied plaintiff’s motion to compel a magazine writer to reveal the source of his story. While finding that no absolute journalist’s privilege existed, Judge Bonsai found that freedom of the press and the public’s right to know would be impaired if reporters were in all instances required to divulge their sources. He reached his decision by balancing the plaintiff’s interest in the requested discovery with the first amendment interest sought to be protected. I am unable to apply the concept of a qualified privilege for journalists to the facts involved here. In its refusal to hold that the first amendment provided a newsman’s privilege, the Supreme Court cited the very problem I see here. That problem inheres in the necessity to define those categories of newsmen who would qualify for the privilege: “a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. . . . Almost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential sources of information, and that these sources will be silenced if he is forced to make disclosures before a grand jury.” Branzburg v. Hayes, supra 408 U.S. at 704—05, 92 S.Ct. at 2668. The Association cites cases in which first amendment protection was extended to persons other than journalists, Richards of Rochford, Inc. v. Pacific Gas & Electric Co., 71 F.R.D. 388 (N.D.Cal.1976) (protection extended to scholar’s research), and Apicella v. McNeil Laboratories, 66 F.R.D. 78 (E.D.N.Y.1975) (protection extended to a medical news letter). I find these distinguishable in that in both cases the sources and the infor mation sought truly" }, { "docid": "15108260", "title": "", "text": "confidentiality is often essential to establishing a relationship with an informant. In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the Supreme Court held that a journalist does not have an absolute privilege under the First Amendment to refuse to disclose confidential sources to a grand jury conducting a criminal investigation, despite the potential interference with news gathering. The Court justified this decision by pointing to the traditional importance of grand juries and the strong public interest in effective criminal investigation. It recognized, however, that because news gathering is essential to a free press, it deserves some First Amendment protection. Thus the Court indicated that a qualified privilege would be available in some circumstances even where a reporter is called before a grand jury to testify. 408 U.S. at 707, 92 S.Ct. at 2669 Moreover, Justice Powell, who cast the deciding vote in Branzburg, wrote a concurring opinion in which he stated that courts can determine whether a privilege applies by using a balancing test: The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions. Id. at 710, 92 S.Ct. at 2671 (footnote omitted). Although Branzburg may limit the scope of the reporter’s First Amendment privilege in criminal proceedings, this circuit has previously held that in civil cases, where the public interest in effective criminal law enforcement is absent, that case is not controlling. Carey v. Hume, 492 F.2d 631, 636 (D.C.Cir.), cert. dismissed, 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974) In Carey we considered the question whether a reporter being sued for libel could refuse to reveal the identity of confidential sources who provided the information on which the allegedly libelous news story was based. We decided that the circumstances of that case did not warrant application of a" }, { "docid": "5065674", "title": "", "text": "salaries for their news gathering efforts, Such financial gain does not taint the importance of the services to our cherished first amendment goals. Second, the reporter’s privilege must encompass all news gathering efforts, not simply those for newspapers: “The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.” Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938). Finally, the defendants contend that the proceedings in New York Times v. Jascalevich, 439 U.S. 1301, 98 S.Ct. 3058, 3060, 58 L.Ed.2d 9 (1978), have somehow modified the Supreme Court’s decision in Branzburg. The refusal of Justices White and Marshall to stay the order of the Supreme Court of New Jersey was plainly not a ruling on the merits. Furthermore, Justice White indicated his belief that the Court had never ruled on the issue whether “the obligation to obey an otherwise valid subpoena served on a newsman is conditioned upon the showing of special circumstances.” 98 S.Ct. at 3060. In the absence of a definitive resolution of this issue, the Court is not bound to follow the precedent of the Supreme Court of New Jersey in In re Farber, 78 N.J. 259, 394 A.2d 330, cert. denied, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978). Accordingly, the reporter is protected from the subpoena power of a criminal defendant unless the information is necessary to a fair hearing and there are no alternative avenues for access to the information in the reporter’s possession. III. THE REPORTER’S INFORMATION IS AVAILABLE FROM ALTERNATIVE SOURCES AND IS NOT NECESSARY TO A FAIR HEARING. The information the defendants seek from the reporter concerns a briefing which was attended by nearly 100 FBI agents. Any information in the reporter’s possession would be merely hearsay provided by one of the participants to the reporter. The Court has already heard testimony from numerous eyewitnesses to the briefing. The Court has also heard testimony from an FBI agent who testified with the assistance of notes made during the briefing and another agent who" }, { "docid": "11177401", "title": "", "text": "her source is too apparent to require belaboring.”). Indeed, reporters “depend[ ] upon an atmosphere of confidentiality and trust” to carry out their mission, a mission critical to an informed and functioning democracy. Jaffee, 518 U.S. at 10, 116 SiCt. 1923. B. Any consideration of the reporter’s privilege must start with Branzburg, where the Supreme Court upheld, by a vote of five to four, the compulsion of confidential source information from reporters. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). The majority opinion highlighted the “longstanding principle that ‘the public ... has a right to every man’s evidence,’ except for those persons protected by a constitutional, common law, or statutory privilege.” Id. at 688, 92 S.Ct. 2646 (citations omitted). The opinion also stated that “news gathering is not without its First Amendment protections,” id. at 707, 92 S.Ct. 2646, but the Court did not specify exactly what those protections might encompass, although it indicated that “[ojfficial harassment of the press” and bad faith investigations might fall within the parameters of the First Amendment’s protection of reporters. Id. at 707-08, 92 S.Ct. 2646. Further complicating matters is Justice Powell’s “enigmatic concurring opinion,” id. at 725, 92 S.Ct. 2646 (Stewart, J., dissenting), which is in part at odds with the majority opinion he joined. In the concurrence, Justice Powell emphasized “the limited nature of the Court’s holding,” and endorsed ■ a balancing test, according to which “if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation,” then courts should consider the applicability of the reporter’s privilege on a “case-by-case basis” by “the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” Id. at 709-10, 92 S.Ct. 2646 (Powell, J., concurring). The full import of Justice Powell’s concurrence continues to be debated. Some analogize the Branzburg majority opinion to a plurality opinion, and therefore assert Justice Powell’s concurrence as the narrowest opinion is controlling. See In re Grand Jury Subpoena," }, { "docid": "21907389", "title": "", "text": "the confidential sources outweighed the First Amendment right of McGraw-Hill. Accordingly, he ordered that the names be disclosed. When McGraw-Hill persisted in its refusal to reveal the names maintained by Platt’s editor Ernest McClelland, Judge Gray imposed a fine of $100 per day on McGraw-Hill for civil contempt. This appeal followed. The law in this Circuit is clear that to protect the important interests of reporters and the public in preserving the confidentiality of journalists’ sources, disclosure may be ordered only upon a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources. Baker v. F & F Investment, 470 F.2d 778, 783-85 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2147, 36 L.Ed.2d 686 (1973). Accord, Zerilli v. Smith, 656 F.2d 705, 713-15 (D.C.Cir.1981); Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977). Upon careful review of the record, we are convinced that there was an insufficient basis for ordering identification of the confidential sources. In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the Supreme Court held that reporters do not possess a blanket exemption from testifying before a grand jury. In his concurring opinion, however, Justice Powell emphasized the limited nature of the Court’s holding, and stated that: if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered. Id. at 710, 92 S.Ct. at 2671. The names of the confidential sources sought in this instance bear at most a tenuous and speculative relationship to their antitrust claims. The States argue that oil companies may have transmitted price information among themselves by releasing that data to reporters of Platt’s. We find no such allegation, however, in" }, { "docid": "11177319", "title": "", "text": "constitutional, testimonial privilege that Risen was entitled to invoke was the Fifth Amendment privilege against self-incrimination, but he has been granted immunity from prosecution for his potential exposure to criminal liability. Accordingly, we reverse the district court’s decision granting Risen a qualified First Amendment reporter’s privilege that would shield him from being compelled to testify in these criminal proceedings. III. The Common-Law Privilege Claim Risen next argues that, even if Branzburg prohibits our recognition of a First Amendment privilege, we should recognize a qualified, federal common-law reporter’s privilege protecting confidential sources. We decline to do so. A. In the course of rejecting the First Amendment claim in Branzburg, the Supreme Court also plainly observed that the common law recognized no such testimonial privilege: it is thus not surprising that the great weight of authority is that newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation. At common law, courts consistently refused to recognize the existence of any privilege authorizing a newsman to refuse to reveal confidential information to a grand jury. Branzburg, 408 U.S. at 685, 92 S.Ct. 2646; id. at 693, 92 S.Ct. 2646 (“[T]he evidence fails to demonstrate that there would be a significant constriction of the flow of news to the public if this Court reaffirms the prior common-law and constitutional rule regarding the testimonial obligations of newsmen” (emphasis added)); id. at 698-99, 92 S.Ct. 2646 (“[T]he common law recognized no such privilege, and the constitutional argument was not even asserted until 1958”); Swidler & Berlin v. United States, 524 U.S. 399, 410, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998) (noting that “Branzburg dealt with the creation of [a] privilege[ ] not recognized by the common law” (emphasis added)); see also Judith Miller, 438 F.3d at 1154 (Sentelle, J., concurring) (Branzburg is “as dispositive of the question of common law privilege as it is of a First Amendment privilege”); In re Special Proceedings, 373 F.3d 37, 44 (1st Cir.2004) (Branzburg “flatly rejected any notion of a general-purpose reporter’s privilege for confidential sources, whether by" } ]

[ { "docid": "3316359", "title": "", "text": "legislative prayer like that approved in Marsh. Rather, they embody the precise kind of “advance[ment]” of one particular religion that Marsh cautioned against. Accordingly, we hold the district court did not err in finding that the challenged prayers violated the Establishment Clause and enjoining the Town Council “from invoking the name of a specific deity associated with any one specific faith or belief in prayers given at Town Council meetings.” We note that this conclusion accords with the Supreme Court’s apparent intent to confine its holding in Marsh to the specific “circumstances” before it — a nonsectarian prayer preceding public business, directed only at the legislators themselves. Marsh, 463 U.S. at 792, 103 S.Ct. 3330. We also note that, in the more than twenty years since Marsh, the Court has never found its analysis applicable to any other circumstances; rather, the Court has twice specifically refused to extend the Marsh approach to other situations. See Lee, 505 U.S. at 596, 112 S.Ct. 2649; Allegheny, 492 U.S. at 603, 109 S.Ct. 3086. Similarly, we and our sister circuits have steadfastly refused to extend Marsh. See, e.g., Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 381 (6th Cir.1999); North Carolina Civil Liberties Union Legal Found. v. Constangy, 947 F.2d 1145, 1148-49 (4th Cir.1991). Indeed, as the district court noted, the Town Council has not cited any case upholding prayers by legislative or other public bodies that explicitly invoke one religion in preference to others. We refuse to do so here. Such a holding would, we believe, be plainly contrary to “[t]he clearest command of the Establishment Clause ... that one religious denomination cannot be officially preferred over another.” Larson, 456 U.S. at 244, 102 S.Ct. 1673; accord Grumet, 512 U.S. at 703, 114 S.Ct. 2481; Allegheny, 492 U.S. at 604-05, 109 S.Ct. 3086; Everson, 330 U.S. at 15, 67 S.Ct. 504. IV. Public officials’ brief invocations of the Almighty before engaging in public business have always, as the Marsh Court so carefully explained, been part of our Nation’s history. The Town Council of Great Falls remains free to engage in such" } ]

[ { "docid": "18106187", "title": "", "text": "a particular creed, id. Allegheny underscored the point, clarifying that “[t]he legislative prayers involved in Marsh did not violate [the Establishment Clause] because the particular chaplain had ‘removed all references to Christ.’ ” Allegheny, 492 U.S. at 603, 109 S.Ct. 3086 (quoting Marsh, 463 U.S. at 793 n. 14, 103 S.Ct. 3330) (emphasis added). As the Court observed, Marsh “recognized that not even the ‘unique history’ of legislative prayer can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief.” Id. (quoting Marsh, 463 U.S. at 791, 103 S.Ct. 3330) (citation omitted). Moreover, the Court took pains to distinguish between the constitutionality of “a specifically Christian symbol, like a creche, and more general religious references, like the legislative prayers in Marsh.” Id. Our cases have hewed to this approach, approving legislative prayer only when it is nonsectarian in both policy and practice. In Wynne, the town council had adopted an allegedly neutral prayer policy but had nevertheless commenced every meeting with opening prayers that expressly and repeatedly referred to Jesus Christ. See Wynne, 376 F.3d at 295, 296 n. 2. Reading Marsh and Allegheny to “teach that a legislative body cannot, consistent with the Establishment Clause, ‘exploit’ this prayer opportunity to ‘affiliate’ the Government with one specific faith or belief in preference to others,” we struck down the policy. Id. at 298. The basis for our decision was straightforward: unlike in Marsh, where “the chaplain had affirmatively ‘removed all references to Christ,’ ” id. (quoting Marsh, 463 U.S. at 793 n. 14, 103 S.Ct. 3330), the prayers in Wynne “ ‘frequently’ contained references to ‘Jesus Christ,’ and thus promoted one religion over all others, dividing the Town’s citizens along denominational lines,” id. at 298-99. The prayers thus ran afoul of Marsh’s proscription of prayers that “advance any one ... faith or belief.” Id. at 300 (quoting Marsh, 463 U.S. at 794-95, 103 S.Ct. 3330). We found unpersuasive the council’s arguments that its references to Jesus Christ fell within “Marsh’s approval of a prayer ‘in the Judeo-Christian tradition,’ ” id. at 299" }, { "docid": "18106180", "title": "", "text": "prayer has coexisted with the principles of disestablishment and religious freedom.” Id.; see also Cnty. of Allegheny v. ACLU, 492 U.S. 573, 603, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (recognizing the unique history of legislative prayer). Taking heed of this basic reality, the Supreme Court has acknowledged the legitimacy of legislative prayer on multiple occasions. For example, in Marsh, the Court confronted the constitutionality of the Nebraska Legislature’s decision to have a paid chaplain offer a brief prayer before each legislative session. See Marsh, 463 U.S. at 784-85, 103 S.Ct. 3330. The Court engaged in a lengthy historical analysis, noting that “the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.” Id. at 788, 103 S.Ct. 3330. The practice of legislative prayer was similarly commonplace in the states. See id. at 788-89, 103 S.Ct. 3330. Based on that history, the Court concluded that there was “no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged.” Id. at 791, 103 S.Ct. 3330. While Marsh is the only Supreme Court case to address directly the constitutionality of legislative prayer, the Court has since reaffirmed its support for the practice while ruling on the propriety of two allegedly unconstitutional holiday displays located on public property in Pittsburgh. See Allegheny, 492 U.S. 573, 109 S.Ct. 3086. Though the Court ruled that one of those displays was unconstitutional, it was careful to reaffirm the status of legislative prayer as one of our “accepted traditions dating back to the Founding.” Id. at 602, 109 S.Ct. 3086 (quotation and citation omitted). We have followed the Supreme Court’s guidance in repeatedly upholding the practice of legislative prayer. In Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir.2004), we considered the legislative prayer policy employed by the Town Council of Great Falls, South Carolina. In so doing, we observed that “[pjublic officials’ brief invocations of" }, { "docid": "18106233", "title": "", "text": "has placed its imprimatur, deliberately or by implication, on any one faith or religion. See Marsh, 463 U.S. at 792-94, 103 S.Ct. 3330. More is necessary than to find that religious leaders selected to offer prayers were of one denomination. In Marsh, even though the Nebraska legislature had placed its imprimatur on the Presbyterian chaplain’s prayers inasmuch as the chaplain had been employed and paid by the legislature for 16 years, the Supreme Court concluded that the legislature had not advanced one religion, because the chaplain had given broad, inclusive prayers over those years. See Marsh, 463 U.S. at 793 n. 14, 103 S.Ct. 3330. By contrast, however, in Wynne v. Town of Great Falls, South Carolina, 376 F.3d 292 (4th Cir.2004), the Town Council allowed only Christian prayers and refused to allow prayers associated with other religions. Id. at 295. In that circumstance, we held that the Council’s actions had affiliated the Council with one specific faith and demonstrated a preference for Christianity over other religions. Id. at 298-99. As we noted, Here, the Town Council insisted upon invoking the name “Jesus Christ,” to the exclusion of deities associated with any other particular religious faith, at Town Council meetings in public prayers in which the Town’s citizens participated. Thus, the Town Council clearly “advance[d]” one faith, Christianity, in preference to others, in a manner decidedly inconsistent with Marsh. Id. at 301; see also Simpson, 404 F.3d at 282 (characterizing Wynne as holding that “a Town Council’s practice explicitly advancing exclusively Christian themes to be unconstitutional”). In Simpson, we addressed a prayer policy much like the one at issue here and affirmed its constitutionality. Chesterfield County had established a first-come, first-serve policy for religious leaders to give invocations. But the County did decline to allow a Wiccan to offer an invocational prayer. Even though the governmental entity exercised this limited control, we approved the County’s policy, based mostly on the general inelusiveness of its policy and its neutrality generally in selecting leaders to deliver prayers. While the holding in Simpson did not explicitly hinge on the fact that religious leaders" }, { "docid": "18106181", "title": "", "text": "concluded that there was “no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged.” Id. at 791, 103 S.Ct. 3330. While Marsh is the only Supreme Court case to address directly the constitutionality of legislative prayer, the Court has since reaffirmed its support for the practice while ruling on the propriety of two allegedly unconstitutional holiday displays located on public property in Pittsburgh. See Allegheny, 492 U.S. 573, 109 S.Ct. 3086. Though the Court ruled that one of those displays was unconstitutional, it was careful to reaffirm the status of legislative prayer as one of our “accepted traditions dating back to the Founding.” Id. at 602, 109 S.Ct. 3086 (quotation and citation omitted). We have followed the Supreme Court’s guidance in repeatedly upholding the practice of legislative prayer. In Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir.2004), we considered the legislative prayer policy employed by the Town Council of Great Falls, South Carolina. In so doing, we observed that “[pjublic officials’ brief invocations of the Almighty before engaging in public business have always, as the Marsh Court so carefully explained, been part of our Nation’s history.” Wynne, 376 F.3d at 302. And while we determined that the town council’s policy was unconstitutional as implemented, that decision was by no means based on a wholesale condemnation of legislative prayer. To the contrary, we made quite clear that invocations were still permissible. See id. (“The Town Council of Great Falls remains free to engage in ... invocations prior to Council meetings.”) We drove this point home in Simpson v. Chesterfield County Board of Supervisors, 404 F.3d 276 (4th Cir.2005), taking care to explain the numerous salutary benefits of invocations. In Simpson, a citizen challenged the Chesterfield County Board of Supervisors’ invocation practice, which afforded religious leaders throughout the county an opportunity to give a “non-sectarian” prayer at the start of board meetings on a first-come, first-serve basis. Simpson, 404 F.3d at 278-79. We rejected her challenge. Harkening back to Marsh, we observed that “legislative invocations perform the venerable function of seeking" }, { "docid": "18106186", "title": "", "text": "Marsh, 463 U.S. at 792, 103 S.Ct. 3330 (quoting McGowan v. Maryland, 366 U.S. 420, 442, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961)). Nebraska’s invocations fell within that tradition, going so far as to remove “all references to Christ after a 1980 complaint from a Jewish legislator,” id. at 793 n. 14, 103 S.Ct. 3330, in order to ensure that the prayers represented a “tolerable acknowledgement of beliefs widely held among the people of this country,” id. at 792, 103 S.Ct. 3330. These efforts at ecumenism were essential to the Court’s holding: it concluded that the prayer policy was con stitutional because there was “no indication that [Nebraska’s] prayer opportunity ha[d] been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Id. at 794-95, 103 S.Ct. 3330. Indeed, while the Court noted that “[t]he content of the prayer[s] is not of concern to judges,” id. at 794, 103 S.Ct. 3330, it adopted such a hands-off approach only once it was satisfied that Nebraska’s prayers did not “proselytize or advance” a particular creed, id. Allegheny underscored the point, clarifying that “[t]he legislative prayers involved in Marsh did not violate [the Establishment Clause] because the particular chaplain had ‘removed all references to Christ.’ ” Allegheny, 492 U.S. at 603, 109 S.Ct. 3086 (quoting Marsh, 463 U.S. at 793 n. 14, 103 S.Ct. 3330) (emphasis added). As the Court observed, Marsh “recognized that not even the ‘unique history’ of legislative prayer can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief.” Id. (quoting Marsh, 463 U.S. at 791, 103 S.Ct. 3330) (citation omitted). Moreover, the Court took pains to distinguish between the constitutionality of “a specifically Christian symbol, like a creche, and more general religious references, like the legislative prayers in Marsh.” Id. Our cases have hewed to this approach, approving legislative prayer only when it is nonsectarian in both policy and practice. In Wynne, the town council had adopted an allegedly neutral prayer policy but had nevertheless commenced every meeting with opening prayers that expressly and" }, { "docid": "3316353", "title": "", "text": "v. Weisman, 505 U.S. 577, 641, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (Scalia, J., dissenting) (conceding “that our constitutional tradition ... [has] ruled out of order government-sponsored endorsement of religion — even when no legal coercion is present, and indeed even when no ersatz, ‘peer-pressure’ psycho-coercion is present — where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ)”). If Marsh itself left any question as to whether the Court somehow intended to exempt invocations of deliberative public bodies from this “bedrock Establishment Clause principle,” Allegheny, 492 U.S. at 605, 109 S.Ct. 3086, the Court made clear in Allegheny that it had no such intention. Indeed, the Allegheny Court clarified that it only upheld the prayer in Marsh against Establishment Clause challenge because the Marsh prayer did not violate this nonsectarian maxim — “because the particular chaplain had ‘removed all references to Christ.’ ” Id. at 603, 109 S.Ct. 3086 (emphasis added) (quoting Marsh, 463 U.S. at 793 n. 14, 103 S.Ct. 3330). The Court in Allegheny explained that invocations “that have the effect of affiliating the government with any one specific faith or belief’ or demonstrate “the government’s allegiance to a particular sect or creed” do not fall within the category of legislative prayers justified by the “unique history” discussed in Marsh. Id. Nevertheless, the Town Council argues that Marsh’s approval of a prayer “in the Judeo-Christian tradition,” Marsh, 463 U.S. at 793, 103 S.Ct. 3330, constitutes approval of prayers, like those at issue here, that invoke Jesus Christ, the Christian deity. The Town Council maintains that these prayers fall within the “JudeoChristian tradition” because there is “no meaningful distinction between a reference to the Judeo-Christian God or ‘Heavenly Father’ and a reference to ‘Jesus Christ.’ ” Brief of Appellant at 19. That argument misunderstands the term, “Judeo-Christian tradition,” and misreads Supreme Court precedent. As the district court pointed out, quoting Merriam-Webster’s Collegiate Dictionary 633 (10th ed.1999), a prayer in" }, { "docid": "3316354", "title": "", "text": "603, 109 S.Ct. 3086 (emphasis added) (quoting Marsh, 463 U.S. at 793 n. 14, 103 S.Ct. 3330). The Court in Allegheny explained that invocations “that have the effect of affiliating the government with any one specific faith or belief’ or demonstrate “the government’s allegiance to a particular sect or creed” do not fall within the category of legislative prayers justified by the “unique history” discussed in Marsh. Id. Nevertheless, the Town Council argues that Marsh’s approval of a prayer “in the Judeo-Christian tradition,” Marsh, 463 U.S. at 793, 103 S.Ct. 3330, constitutes approval of prayers, like those at issue here, that invoke Jesus Christ, the Christian deity. The Town Council maintains that these prayers fall within the “JudeoChristian tradition” because there is “no meaningful distinction between a reference to the Judeo-Christian God or ‘Heavenly Father’ and a reference to ‘Jesus Christ.’ ” Brief of Appellant at 19. That argument misunderstands the term, “Judeo-Christian tradition,” and misreads Supreme Court precedent. As the district court pointed out, quoting Merriam-Webster’s Collegiate Dictionary 633 (10th ed.1999), a prayer in the “Judeo-Christian” tradition has “ ‘historical roots in both Judaism and Christianity.’ ” Accord Random House Webster’s Unabridged Dictionary 1036 (2d ed.1998) (defining “Judeo-Christian” as “of or per- taming to the religious writings, beliefs, values or traditions held in common by Judaism and Christianity”) (emphasis added); see also Allegheny, 492 U.S. at 604 n. 53, 109 S.Ct. 3086 (distinguishing the Ju-deo-Christian prayer approved in Marsh from “sectarian proclamations” that “demonstrate an official preference for Christianity, and a corresponding official discrimination against all non-Christians”) (emphasis in original). The prayers sponsored by the Town Council have invoked a deity in whose divinity only those of the Christian faith believe. This is not a “prayer within the embrace of what is known as the Judeo-Christian tradition,” which is a “nonsectarian prayer” without “explicit references ... to Jesus Christ, or to a patron saint” — references that can “foster a different sort of sectarian rivalry than an invocation or benediction in terms more neutral.” Lee, 505 U.S. at 588, 589, 112 S.Ct. 2649. Thus, we must reject the Town" }, { "docid": "21872370", "title": "", "text": "U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). Marsh also considered, and found constitutionally acceptable, the fact that the prayers in question fit broadly within “the Judeo-Christian tradition.” Marsh, 463 U.S. at 793, 103 S.Ct. 3330. The Supreme Court pointedly declined to discount the prospect that such prayer can aid public bodies in the performance of their duties. Id. at 792, 103 S.Ct. 3330. Instead, it recognized the capacity of legislative invocations to bring the unifying aspects of our heritage to the difficult task of public deliberation. See, e.g., id. at 786, 791, 103 S.Ct. 3330. Simpson’s position would essentially repeal this understanding. B. In recognizing the value of invocations, Marsh did not suggest that there are no limits on the practice of legislative prayer. Rather, the Court stated that a practice would remain constitutionally unremarkable where “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Id. at 794-95, 103 S.Ct. 3330. Our recent decision in Wynne is illustrative. In Wynne, sectarian references in invocations were far more than occasional or incidental. Even a perfunctory reading of the prayers reveals their pervasively and exclusively sectarian nature. In Great Falls, “the Town Council insisted upon invoking the name ‘Jesus Christ’” in an exclusive manner in prayer “in which the Town’s citizens participated.” Wynne, 376 F.3d at 301 & n. 7. Town leaders made plain that they intended to begin meetings with elements of what can only be described as Christian worship. See id. at 295 (quoting the mayor as stating that “[t]his is the way we’ve always done things and we’re not going to change”). In finding this practice unconstitutional, the court held that Marsh precluded local legislatures from improperly exploiting “a ‘prayer opportunity’ to ‘advance’ one religion over others.” Id. at 298 (quoting Marsh, 463 U.S. at 794, 103 S.Ct. 3330). Wynne was concerned that repeated invocation of the tenets of a single faith undermined our commitment to participation by" }, { "docid": "21725588", "title": "", "text": "legislative prayer, but we have read Marsh as hinging on the nonsectarian nature of the invocations at issue there. See Doe v. Vill. of Crestwood, 917 F.2d 1476, 1479 (7th Cir.1990) (striking down town’s “Touch of Italy” festival that included a Roman Catholic mass and stating that Marsh approved a “non-denominational” prayer); Van Zandt v. Thompson, 839 F.2d 1215, 1218-19 (7th Cir.1988) (noting that in Marsh the chaplain removed references to Christ and there was no evidence that the prayers were exploited to proselytize or advance one religion); City of St. Charles, 794 F.2d at 271 (striking down city’s display of a large lighted cross and citing Marsh for proposition that “conventional nonsectarian public invocations of the deity” are permissible). Other circuits, however, have confronted the question of sectarian legislative prayer directly, and their decisions are consistent with the district court’s conclusion. Most recently, the Fourth Circuit relied upon Marsh to resolve two cases involving legislative prayer. In Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir.2004), the court struck down a town’s practice of opening city council meetings with prayers that closely resembled the majority of prayers in this case: brief offerings that ended with supplications like, “In Christ’s name we pray.” Id. at 294. The court placed great reliance on Marsh’s limitation to nonsectarian prayer and its warning that prayer that advances a particular religion is impermissible; it also discussed at some length the Court’s subsequent interpretation of Marsh in Allegheny County. See id. at 297-301. The court concluded that the Christian prayers at issue violated the rule of these two cases by “affiliatfing]” the government with the Christian religion. Id. at 300. A second ease, Simpson v. Chesterfield County Board of Supervisors, 404 F.3d 276 (4th Cir.2005), reaffirms Wynne’s reading of Marsh and Allegheny County and holds that a local board’s nonsectarian prayers were permissible under those cases. The Ninth Circuit faced a similar issue in Bacus v. Palo Verde Unified School District Board of Education, 52 Fed.Appx. 355 (9th Cir.2002) (unpublished order). There, the court struck down a school board’s practice of sectarian invocations" }, { "docid": "3307658", "title": "", "text": "that the “practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.” Id. at 787, 103 S.Ct. 3330. The Marsh Court declined to read the “Establishment Clause of the Amendment to forbid what [its Framers] had just declared acceptable.” Id. at 790, 103 S.Ct. 3330. Citing the “unambiguous and unbroken history of more than 200 years,” the Court held that the invocation of divine guidance “on a public body entrusted with making the laws is not, in these circumstances, an ‘establishment’ of religion.” Id. at 791, 103 S.Ct. 3330. Addressing the concern that the prayer was in the “Ju-deo-Christian” tradition, the Court explained that the “content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Id. at 794-95, 103 S.Ct. 3330. “That being so,” Marsh concluded, “it is not for us to embark on a sensitive evaluation or ... parse the content of a particular prayer.” Id. The Supreme Court had occasion to address Marsh several years later in County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). A divided Court, in a series of fractured opinions, allowed under the Establishment Clause a combined holiday display of a Chanukah menorah, a Christmas tree, and a sign saluting liberty, but found unconstitutional a creche standing alone on the staircase of the county courthouse. In an opinion dissenting from the creche portion of the Court’s decision, Justice Kennedy (joined by three other Justices) maintained that he “cannot comprehend” how the creche can be invalid in light of the Court’s reasoning and holding in Marsh. See County of Allegheny, 492 U.S. at 664, 109 S.Ct. 3086 (Kennedy, J., concurring in part and dissenting in part). Justice Blackman, writing the opinion of the Court on behalf of himself and four other Justices, responded to Justice Kennedy’s invocation of Marsh. Justice Blackmun explained that the Court had recognized in Marsh that" }, { "docid": "21872393", "title": "", "text": "validity of legislative prayer, it does not necessarily follow that practices like proclaiming a National Day of Prayer are constitutional. Legislative prayer does not urge citizens to engage in religious practices, and on that basis could well be distinguishable from the exhortation from government to the people that they engage in religious conduct. 492 U.S. at 603 n.52, 109 S.Ct. 3086 (emphasis added) (citation omitted). Our recent decisions in Mellen v. Bunting, 327 F.3d 355 (4th Cir.2003), and Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir.2004), are fully-consistent with the distinction made . between legislative prayer and prayer for the people. In Mel-len, we struck down a prayer said at eve ning meals at the Virginia Military Institute, a state college, when the prayer was composed and sponsored by state officials for “the people,” i.e. the students during the meal hour. 327 F.3d at 375. And in Wynne, we struck down a uniquely Christian legislative prayer designed for and participated in by the people. 376 F.3d at 302. In response to the Town Council’s argument in Wynne that its prayer should be approved under Marsh because it was given for the Town Council, not the people, we said: The Town Council briefly contends that the prayers at issue here were “only and for the benefit of the Council members.” Given the record evidence and unchallenged factual findings of the district court, that contention is simply untenable. The district court found that the Town Council specifically listed the prayers first on its agenda of public business and that citizens customarily participated in the prayers by standing and bowing their heads. Indeed, citizens actively joined in the prayers by declaring “amen” and sometimes “hallelujah” at the conclusion.... Finally in its June 2003 Resolution, the Town Council stated that the “invocation may request divine guidance for the Town of Great Falls and its ... citizens,” (emphasis added), and so itself has recognized that the town’s prayers are not just for council members but for all of the Town’s citizens. Thus, in a very real sense, the Town Council has directed" }, { "docid": "3316358", "title": "", "text": "“contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief.” Allegheny, 492 U.S. at 603, 109 S.Ct. 3086 (emphasis added). Here, the Town Council insisted upon invoking the name “Jesus Christ,” to the exclusion of deities associated with any other particular religious faith, at Town Council meetings in public prayers in which the Town’s citizens participated. Thus, the Town Council clearly “advance[d]” one faith, Christianity, in preference to others, in a manner decidedly inconsistent with Marsh. In sum, we must reject the Town Council’s arguments that Marsh renders the challenged prayers constitutional. Marsh does not permit legislators to do what the district court, after a full trial, found the Town Council of Great Falls did here— that is, to engage, as part of public business and for the citizenry as a whole, in prayers that contain explicit references to a deity in whose divinity only those of one faith believe. The invocations at issue here, which specifically call upon Jesus Christ, are simply not constitutionally ac ceptable legislative prayer like that approved in Marsh. Rather, they embody the precise kind of “advance[ment]” of one particular religion that Marsh cautioned against. Accordingly, we hold the district court did not err in finding that the challenged prayers violated the Establishment Clause and enjoining the Town Council “from invoking the name of a specific deity associated with any one specific faith or belief in prayers given at Town Council meetings.” We note that this conclusion accords with the Supreme Court’s apparent intent to confine its holding in Marsh to the specific “circumstances” before it — a nonsectarian prayer preceding public business, directed only at the legislators themselves. Marsh, 463 U.S. at 792, 103 S.Ct. 3330. We also note that, in the more than twenty years since Marsh, the Court has never found its analysis applicable to any other circumstances; rather, the Court has twice specifically refused to extend the Marsh approach to other situations. See Lee, 505 U.S. at 596, 112 S.Ct. 2649; Allegheny, 492 U.S. at 603, 109 S.Ct. 3086. Similarly, we and our" }, { "docid": "20713859", "title": "", "text": "meaning of Marsh, requires intent. See Marsh, 463 U.S. at 794-95, 103 S.Ct. 3330. We disagree. Marsh did not speak of scien-ter. Rather, it held as it did after rejecting the argument that aspects of the prayer practice had the effect of giving preference to particular religious views. See id. at 793, 103 S.Ct. 3330. Allegheny, moreover, held that Marsh had found that the prayers did not \"have the effect of affiliating the government with any one specific faith or belief.” Allegheny, 492 U.S. at 603, 109 S.Ct. 3086 (emphasis added). . On appeal, the defendants do not dispute that the plaintiffs have standing to sue. The defendants argue, however, that the plaintiffs do not have standing to challenge what was said in Town Board meetings which the plaintiffs have no specific memory of attending. The Supreme Court did not adopt such a restrictive view of the prayer practice under challenge in Marsh. Nor has any circuit, as far as we are aware, adopted such a view in assessing a challenge to legislative prayer. Indeed, in Pelphrey, the Eleventh Circuit found the plaintiffs had standing, as municipal taxpayers, to challenge the defendant county’s prayer practice in its entirety. 547 F.3d at 1280-81; see also Joyner, 653 F.3d at 349-50 (considering the defendant county’s prayer practice in its entirety in assessing a challenge brought by plaintiffs who filed suit after hearing one prayer); Wynne v. Town of Great Falls, S.C., 376 F.3d 292, 294, 298-302 (4th Cir.2004) (considering the defendant county’s prayer practice as a whole in assessing a challenge brought by a plaintiff who “regularly attended” Town Council meetings). We decline to adopt a more restrictive approach here. . The randomness of the selection process was further undermined, moreover, by the reliance of the administrative personnel managing the process on a subset of the already-narrowed list consisting of a cadre of recurrent volunteers who were willing to appear frequently to give the invocation. . The town asserts that we may not consider the content of prayers absent an independent showing that the prayer opportunity has \"been exploited to proselytize or" }, { "docid": "3316357", "title": "", "text": "[or] promote” the belief. Webster’s Third New International Dictionary 30, 1821 (3d ed.1993). Advancement could include “conversion” but it does not necessarily contain any “conversion” or “proselytization” element. Similarly, although prose-lytization certainly involves some element of advancement, the word “proselytize” stresses conversion in a manner that the word “advance” does not. Thus, according each word — “proselytize” and “advance”— its particular, ordinary meaning does not render the other “meaningless.” Rather, to adopt the Town Council’s contrary view and interpret “advance” as merely a synonym for “proselytize,” would most certainly render the word “advance” meaningless, and would force us to ignore the Marsh Court’s use of the disjunctive in cautioning against “proselytiz[ation] or advancement]” of a particular religious creed. 463 U.S. at 794, 103 S.Ct. 3330. Adopting the Town Council’s interpretation would also force us to ignore the Supreme Court’s subsequent interpreta tion of the Marsh language in Allegheny. Rather than finding that this language refers only to prayers that “proselytize” a particular faith, as the Council argues, the Supreme Court has explained that Marsh prohibits “contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief.” Allegheny, 492 U.S. at 603, 109 S.Ct. 3086 (emphasis added). Here, the Town Council insisted upon invoking the name “Jesus Christ,” to the exclusion of deities associated with any other particular religious faith, at Town Council meetings in public prayers in which the Town’s citizens participated. Thus, the Town Council clearly “advance[d]” one faith, Christianity, in preference to others, in a manner decidedly inconsistent with Marsh. In sum, we must reject the Town Council’s arguments that Marsh renders the challenged prayers constitutional. Marsh does not permit legislators to do what the district court, after a full trial, found the Town Council of Great Falls did here— that is, to engage, as part of public business and for the citizenry as a whole, in prayers that contain explicit references to a deity in whose divinity only those of one faith believe. The invocations at issue here, which specifically call upon Jesus Christ, are simply not constitutionally ac ceptable" }, { "docid": "21872366", "title": "", "text": "of the holding in Marsh.” Snyder v. Murray City Corp., 159 F.3d 1227, 1232 (10th Cir. 1998) (en banc). Third, applying Marsh here follows this circuit’s case law. The magistrate judge, during oral argument, remarked that “[s]everal courts, including our own Fourth Circuit, want to escape somewhat of Marsh.” This is incorrect. Fourth Circuit case law demonstrates not an intent to escape Marsh but a determination to apply it as the Supreme Court has directed. Most recently, our decision in Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir.2004), found a Town Council’s practice explicitly advancing exclusively Christian themes to be unconstitutional. Wynne reached this conclusion by applying Marsh, unequivocally signaling thereby that Marsh provided the appropriate rubric for questions of this sort. Moreover, even when we have declined to apply Marsh, we have done so in a way that clearly indicates its appropriate application to the present case. For instance, in North Carolina Civil Liberties Union Legal Foundation v. Constangy, 947 F.2d 1145, 1148 (4th Cir.1991), we declined to apply Marsh for the simple reason that judges praying from the bench did not fit within the ambit of the Court’s discussion of legislative prayer. Likewise, Mellen v. Bunting, 327 F.3d 355, 370 (4th Cir.2003), did not apply Marsh because “the supper prayer [at a state-sponsored university] does not share Marsh’s ‘unique history.’ ” In short, this case squarely presents questions concerning legislative prayer. To ignore Marsh, when the Supreme Court explicitly tied Marsh to the domain of legislative prayer, would be to ignore the Supreme Court’s own directions. We therefore proceed to apply the principles of Marsh to the questions presented in this case. We shall first address the prayers themselves and then take up the aspect of the County’s policy governing clergy selection. III. A. Based on the long history of legislative prayer in Congress, Marsh concluded that non-sectarian legislative prayer generally does not violate the Establishment Clause. Marsh, 463 U.S. at 793-95, 103 S.Ct. 3330. Although Simpson aims much of her challenge at the selection of clergy, the invocations themselves, as part and parcel of" }, { "docid": "18106182", "title": "", "text": "the Almighty before engaging in public business have always, as the Marsh Court so carefully explained, been part of our Nation’s history.” Wynne, 376 F.3d at 302. And while we determined that the town council’s policy was unconstitutional as implemented, that decision was by no means based on a wholesale condemnation of legislative prayer. To the contrary, we made quite clear that invocations were still permissible. See id. (“The Town Council of Great Falls remains free to engage in ... invocations prior to Council meetings.”) We drove this point home in Simpson v. Chesterfield County Board of Supervisors, 404 F.3d 276 (4th Cir.2005), taking care to explain the numerous salutary benefits of invocations. In Simpson, a citizen challenged the Chesterfield County Board of Supervisors’ invocation practice, which afforded religious leaders throughout the county an opportunity to give a “non-sectarian” prayer at the start of board meetings on a first-come, first-serve basis. Simpson, 404 F.3d at 278-79. We rejected her challenge. Harkening back to Marsh, we observed that “legislative invocations perform the venerable function of seeking divine guidance for the legislature” and “constitute ‘a tolerable acknowledgment of beliefs widely held among the people of this country.’ ” Id. at 282 (quoting Marsh, 463 U.S. at 792, 103 S.Ct. 3330). See also Turner v. City Council of the City of Fredericksburg, 534 F.3d 352, 356 (4th Cir.2008) (“The Council’s decision to open its legislative meetings with nondenominational prayers does not violate the Establishment Clause.”). In sum, invocations at the start of legislative sessions can solemnize those occasions; encourage participants to act on their noblest instincts; and foster the humility that recognition of a higher hand in human affairs can bring. There is a clear line of precedent not only upholding the practice of legislative prayer, but acknowledging the ways in which it can bring together citizens of all backgrounds and encourage them to participate in the workings of their government. B. At the same time, both the Supreme Court and this circuit have been careful to place clear boundaries on invocations. That is because prayer in governmental settings carries risks. The proximity" }, { "docid": "18106188", "title": "", "text": "repeatedly referred to Jesus Christ. See Wynne, 376 F.3d at 295, 296 n. 2. Reading Marsh and Allegheny to “teach that a legislative body cannot, consistent with the Establishment Clause, ‘exploit’ this prayer opportunity to ‘affiliate’ the Government with one specific faith or belief in preference to others,” we struck down the policy. Id. at 298. The basis for our decision was straightforward: unlike in Marsh, where “the chaplain had affirmatively ‘removed all references to Christ,’ ” id. (quoting Marsh, 463 U.S. at 793 n. 14, 103 S.Ct. 3330), the prayers in Wynne “ ‘frequently’ contained references to ‘Jesus Christ,’ and thus promoted one religion over all others, dividing the Town’s citizens along denominational lines,” id. at 298-99. The prayers thus ran afoul of Marsh’s proscription of prayers that “advance any one ... faith or belief.” Id. at 300 (quoting Marsh, 463 U.S. at 794-95, 103 S.Ct. 3330). We found unpersuasive the council’s arguments that its references to Jesus Christ fell within “Marsh’s approval of a prayer ‘in the Judeo-Christian tradition,’ ” id. at 299 (quoting Marsh, 463 U.S. at 793, 103 S.Ct. 3330), for the prayers referenced Christ— “a deity in whose divinity only those of the Christian faith believe,” id. at 300. We reaffirmed that basic principle just one year later in Simpson. The policy at issue there explicitly required nonsectarian prayers. It mandated that each “invocation must be non-sectarian with elements of the American civil religion and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief.” Simpson, 404 F.3d at 278. We upheld the policy precisely because the prayers were nondenominational. We noted that unlike in Wynne, where the “sectarian references in invocations were far more than occasional or incidental,” id. at 283, the board in Simpson had “aspired to non-sectarianism and requested that invocations refrain from using Christ’s name or, for that matter, any denominational appeal,” id. at 284. Indeed, the board’s policy in action had resulted in “a wide variety of prayers” that “described divinity in wide and embracive terms,” displaying “ecumenism ..." }, { "docid": "18106195", "title": "", "text": "members of the town council. According to the Board, this factual distinction is dispositive, for while prayers delivered by government officials carry an “obvious and inherent risk” of affiliation, prayers delivered by “a wide pool of volunteer, self-selected citizens” will not show “the government’s allegiance to a particular sect or creed.” Appellant’s Br. at 22 (quotations and citations omitted). Similarly, the Board argues that Simpson is factually distinguishable because the county board there decided to artificially narrow the group of eligible religious leaders to “representatives of Judeo-Christian or monotheistic religions.” Id. at 23. While safeguards like nonsectarian messages and wide-ranging religious appeals were necessary in the presence of such editorial control, the Board argues that they are not required where, as here, the policy is “even more inclusive and completely unlimited.” Id. at 23-24. These arguments miss the forest for the trees. With respect to Wynne, the Board is right to observe that the prayers were delivered by members of the town council. See Wynne, 376 F.3d at 294. But that fact was not dispositive. It was the governmental setting for the delivery of sectarian prayers that courted constitutional difficulty, not those who actually gave the invocation. Wynne rested on two pillars: the Supreme Court’s opinion in Marsh, which flatly declared that legislative prayer cannot “proselytize or advance any one ... faith or belief,” id. at 300 (quoting Marsh, 463 U.S. at 794-95, 103 S.Ct. 3330), and the Court’s subsequent clarification that the prayers in Marsh were constitutional “because the particular chaplain had removed all references to Christ,” id. at 299 (quoting Allegheny, 492 U.S. at 603, 109 S.Ct. 3086). Those principles apply with equal force here. And lest there be any doubt, we applied the same type of analysis in Wynne to the policy in Simpson, see Simpson, 404 F.3d at 283-84, which featured prayers delivered by local clergy on a first-come, first-serve basis, see id. at 279. The Board’s arguments regarding Simpson are equally unpersuasive. Once again, the important factor was the nonsectarian nature of the prayer, not the identity of the particular speaker. While the Board contends" }, { "docid": "21872371", "title": "", "text": "belief.” Id. at 794-95, 103 S.Ct. 3330. Our recent decision in Wynne is illustrative. In Wynne, sectarian references in invocations were far more than occasional or incidental. Even a perfunctory reading of the prayers reveals their pervasively and exclusively sectarian nature. In Great Falls, “the Town Council insisted upon invoking the name ‘Jesus Christ’” in an exclusive manner in prayer “in which the Town’s citizens participated.” Wynne, 376 F.3d at 301 & n. 7. Town leaders made plain that they intended to begin meetings with elements of what can only be described as Christian worship. See id. at 295 (quoting the mayor as stating that “[t]his is the way we’ve always done things and we’re not going to change”). In finding this practice unconstitutional, the court held that Marsh precluded local legislatures from improperly exploiting “a ‘prayer opportunity’ to ‘advance’ one religion over others.” Id. at 298 (quoting Marsh, 463 U.S. at 794, 103 S.Ct. 3330). Wynne was concerned that repeated invocation of the tenets of a single faith undermined our commitment to participation by persons of all faiths in public life. For ours is a diverse nation not only in matters of secular viewpoint but also in matters of religious adherence. Advancing one specific creed at the outset of each public meeting runs counter to the credo of American pluralism and discourages the diverse views on which our democracy depends. The facts of Wynne, however, contrast sharply with those in the present case. The insistent sectarianism of the Great Falls prayers, see id. at 294r-96 & n. 2, violated even the spacious boundaries set forth in Marsh Chesterfield’s policy, adopted in the immediate aftermath of Marsh, echoes rather than exceeds Marsh’s teachings. The County never insisted on the invocation of Jesus Christ by name, as the Town Council in Great Falls did. Id. at 301. In fact, Chesterfield has aspired to non-sectarianism and requested that invocations refrain from using Christ’s name or, for that matter, any denominational appeal. Reflecting the effort to include diverse creeds, Chesterfield has had a wide variety of prayers, the richness of which is quite" }, { "docid": "3307659", "title": "", "text": "the content of a particular prayer.” Id. The Supreme Court had occasion to address Marsh several years later in County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). A divided Court, in a series of fractured opinions, allowed under the Establishment Clause a combined holiday display of a Chanukah menorah, a Christmas tree, and a sign saluting liberty, but found unconstitutional a creche standing alone on the staircase of the county courthouse. In an opinion dissenting from the creche portion of the Court’s decision, Justice Kennedy (joined by three other Justices) maintained that he “cannot comprehend” how the creche can be invalid in light of the Court’s reasoning and holding in Marsh. See County of Allegheny, 492 U.S. at 664, 109 S.Ct. 3086 (Kennedy, J., concurring in part and dissenting in part). Justice Blackman, writing the opinion of the Court on behalf of himself and four other Justices, responded to Justice Kennedy’s invocation of Marsh. Justice Blackmun explained that the Court had recognized in Marsh that “not even the ‘unique history’ of legislative prayer can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief.” Id. at 603, 109 S.Ct. 3086 (quoting Marsh, 463 U.S. at 791, 103 S.Ct. 3330). Justice Blackman noted that the legislative prayers in Marsh did not violate this principle “because the particular chaplain had ‘removed all references to Christ.’ ” Id. at 603, 109 S.Ct. 3086 (quoting Marsh, 463 U.S. at 793 n. 14, 103 S.Ct. 3330). He explained that there is accordingly a difference between “a specifically Christian symbol, like a creche, and more general religious references, like the legislative prayers in Marsh.” Id. at 603, 109 S.Ct. 3086. However “history may affect the constitutionality of nonsectarian references to religion by the government,” Justice Blackman concluded, “history cannot legitimate practices that demonstrate the government’s allegiance to a particular sect or creed.” Id. at 604, 109 S.Ct. 3086. The Supreme Court declined once again to apply Marsh in Lee v. Weisman, in which the inclusion of a" } ]

[ { "docid": "23199159", "title": "", "text": "F.2d at 511; Held v. Gulf Oil Co., 684 F.2d 427, 430 (6th Cir.1982). This circuit has held that we must “view ‘continuous violations’ as falling into two categories of ‘narrowly limited exceptions’ to the usual rule that ‘statutes of limita tions ... are triggered at the time the alleged discriminatory act occurred.’ ” Dixon v. Anderson, 928 F.2d 212, 216 (6th Cir.1991), quoting E.E.O.C. v. Penton Industrial Pub. Co., 851 F.2d 835, 837-38 (6th Cir.1988). The first category of continuing violations arise “where there is some evidence of present discriminatory activity giving rise to a claim of a continuing violation; that is, where an employer continues presently to impose disparate work assignments or pay rates between similarly situated groups.” Dixon, 928 F.2d at 216 (emphasis original). The court cited as an example an employer who gives unequal pay for equal work. “The rationale underlying this category is that the employer commits an illegal act, such as giving unequal pay for equal work, each time the employer dispenses the unequal pay.” Id. (emphasis original). However, the court pointed out that “at least one of the forbidden discriminatory acts must have occurred within the relevant limitations period.” Id. The second category of continuing violations arise where there has occurred “a longstanding and demonstrable policy of discrimination.” Id., at 217. “Unrelated incidents of discrimination will not suffice to invoke this exception; rather there must be a continuing ‘over-arching policy of discrimination.’ ” Id. (citing Janikowski v. Bendix Corp., 823 F.2d 945, 948 (6th Cir.1987)). Either of these theories may support appellant’s continuing violation theory in the present case. First, we believe that appellant’s allegations demonstrate that he alleged a specific discriminatory act within the limitations period as required under the first category of Dixon. The discriminatory second job offer of September 9, 1988 fell within thirty days of his September 29, 1988 first EEO contact. Appellant need not demonstrate that'these acts occurred as part of a “plan” or “scheme.” Rather, the alleged discriminatory acts must have occurred “throughout the term of ... employment” and be “related to his discharge.” Hull, 926 F.2d" } ]

[ { "docid": "23625859", "title": "", "text": "2026347, at *3 (6th Cir. Aug.29, 2002). Accordingly, Morgan overturns prior Sixth Circuit law addressing serial violations, i.e., plaintiffs are now precluded from establishing a continuing violation exception by proof that the alleged acts of discrimination occurring prior to the limitations period are sufficiently related to those occurring within the limitations period. The second category of continuing violations, involving a longstanding and demonstrable policy of discrimination, is not implicated by Morgan. Tenenbaum, 2002 WL 2026347, at *2 n. 3. To establish this category of continuing violation, “appellant must demonstrate something more than the existence of discriminatory treatment in his case.” Haithcock, 958 F.2d at 679 (citing a discriminatory policy appearing in a statute or an affirmative action plan as examples of this second category). “The preponderance of the evidence must establish that some form of intentional discrimination against the class of which plaintiff was a member was the company’s standing operating procedure.” EEOC v. Penton Indus. Publishing Co., 851 F.2d 835, 838 (6th Cir.1988) (citations omitted). Here, the plaintiffs do not represent a class, and have otherwise failed to allege class-wide discriminatory action. The plaintiffs broadly allege, “Ashe’s disregard to constitutional rights spans three decades impacting more than these plaintiffs.... ” This allegation is not sufficiently supported by the record. Knoxville consistently employs over 300 firefighters and over 1600 total city employees, but plaintiffs called at trial merely one other retired firefighter who testified concerning allegations of patronage practices occurring in the late 1980’s. This proof is insufficient as a matter of law for plaintiffs to meet their burden of showing a three-decade-long “standing operating procedure” of discrimination. Instead, the plaintiffs proved the existence of discriminatory treatment in their case, but this is inadequate to invoke the “longstanding and demonstrable policy of discrimination” continuing violation exception. Accordingly, we affirm the district court’s finding that the continuing violation doctrine does not apply, although based upon the different reasons stated above. B.W. Potter’s FLSA Claim We review the district court’s factual findings regarding this claim against the City of Knoxville for clear error, and its findings of law de novo. Brock v." }, { "docid": "23351025", "title": "", "text": "837-38 (6th Cir.1988). Because the facts are stipulated, our only task is to determine, as a matter of law, whether Dixon’s and Toki’s situation falls into either of the two categories. A. The First Category “The first category [of continuing violation] arises where there is some evidence of present discriminatory activity giving rise to a claim of a continuing violation; that is, where an employer continues presently to impose disparate work assignments or pay rates between similarly situated employee groups.” Id. at 838 (emphasis in original). The rationale underlying this category is that the employer commits an illegal act, such as giving unequal pay for equal work, each time the employer dispenses the unequal pay. Hall v. Ledex, Inc., 669 F.2d 397, 398 (6th Cir.1982). This result follows from the fact that paying unequal wages for equal work is in itself the forbidden discriminatory act. It is irrelevant that the employer has committed the same illegal act at other times prior to the beginning of the relevant limitations period. See Bazemore v. Friday, 478 U.S. 385, 394-95, 106 S.Ct. 3000, 3005-06, 92 L.Ed.2d 315 (1986). Of course, this category requires a “current” as well as “continuing” violation: at least one of the forbidden discriminatory acts must have occurred within the relevant limitations period. Id. Thus limitations periods begin to run in response to discriminatory acts themselves, not in response to the continuing effects of past discriminatory acts. Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980); United Airlines v. Evans, 431 U.S. 553, 557, 97 S.Ct. 1885, 1888, 52 L.Ed.2d 571 (1977). The distinction between continuing effects and continually recurring violations can be subtle. Plaintiffs Dixon and Toki argue that new violations occur daily whenever Dixon’s and Toki's allegedly “similarly situated” colleagues enjoy membership in SERS and have employee contributions re-curringly withheld from their checks. In fact, however, Dixon and Toki suffer only the continuing effects of past discrimination and are not the victims of a continuing violation. It is not in itself a civil rights violation to treat two employees differently" }, { "docid": "23421666", "title": "", "text": "a court consider all relevant actions allegedly taken pursuant to the employer’s discriminatory policy or practice, including those that would otherwise be time barred.” Alexander v. Local 496, Laborers’ Int’l Union of N. Am., 177 F.3d 394, 408 (6th Cir.1999); see also Held v. Gulf Oil Co., 684 F.2d 427, 430 (6th Cir.1982). This Court has held that continuing violations may be shown in one of two ways. The first is “where there is some evidence of present discriminatory activity giving rise to a claim of a continuing violation,” and “at least one of the forbidden discriminatory acts [has] occurred within the relevant limitations period.” Haithcock, 958 F.2d at 678 (citation omitted) (emphasis in original). The second type of continuing violation exists when a plaintiff has demonstrated a longstanding and over-arching policy of discrimination. See id. This requires a showing by a preponderance of the evidence “that some form of intentional discrimination against the class of which plaintiff was a member was the company’s ‘standing operating procedure.’ ” EEOC v. Penton Indus. Publ’g Co., 851 F.2d 835, 838 (6th Cir.1988) (citation omitted). Regarding the first category of continuing violation, Kovacevich has not alleged an appropriate event that falls within the 300-day period for filing an EEOC charge. She claims that the provost’s denial of her grievance was such an event, but this argument is unpersuasive in light of circuit precedent that the denial of a request for relief from discrimination does not itself constitute a discriminatory act that tolls the statute of limitations. See Janikowski v. Bendix Corp., 823 F.2d 945, 948 (6th Cir.1987). Kovacevich can thus not claim a category-one “continuing violation.” In the alternative, Kovacevich must show by a preponderance of the evidence that. KSU has an over-arching policy — a “standing operating procedure” — of discrimination in promotion or other aspects of employment. Penton, 851 F.2d at 838. This means she must show “something more than the existence of discriminatory treatment in [her] case.” Haithcock, 958 F.2d at 679. We conclude that she has not met this high threshold. Regarding the denial of her own promotions, she" }, { "docid": "19378843", "title": "", "text": "employer’s discriminatory policy or practice, including those that would otherwise be time barred.” Van Zant v. ELM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir.1996). We view continuing violations as falling into two categories of narrowly limited exceptions to the usual rule that statutes of limitations are triggered at the time the alleged discriminatory act occurred. See Haithcock, 958 F.2d at 677. The first category of continuing violations arises “where there is some evidence of present discriminatory activity giving rise to a claim of a continuing violation; that is where an employer continues presently to impose disparate work assignments or pay rates between similarly situated groups.” Dixon, 928 F.2d at 216. However, “at least one of the forbidden discriminatory acts must have occurred within the relevant limitations period.” Id. The second category of continuing violations arises “where there has occurred a longstanding and demonstrable policy of discrimina-tion_ Unrelated incidents of discrimination will not suffice to invoke this exception; rather there must be a continuing over-arching policy of discrimination.” Id. at 217 (internal quotations omitted). The facts in this case clearly support the district court’s conclusion that the defendants are liable regardless of the statute of limitations because their actions were part of a continuing violation. Floyd Conrad testified that over a significant period of time, he refused African Americans membership in Local 496 based on the working-in-the-calling rule. The district court found that this practice continued at least through January 1990. Also as late as January 1990, Local 496’s personnel failed to apprise African-American nonmembers of the procedure necessary to maintain their eligibility for employment referrals, though the union’s overwhelmingly white membership was informed of the relevant procedure. Further, Floyd Conrad’s testimony supports a finding that although the official membership and referral policies of Local 496 may have changed over the years, the practice of excluding black applicants continued into the relevant limitations period. Moreover, the working-in-the-calling rule, memorialized in Local 496’s constitution and bylaws, resulted in the de facto exclusion of African Americans from the ranks of Local 496 as well as from employment at Perry. Thus, the" }, { "docid": "22890253", "title": "", "text": "violations’ as falling into two categories of ‘narrowly limited exceptions’ to the usual rule that ‘statutes of limitations ... are triggered at the time the alleged discriminatory act occurred.’ ” Id. at 216 (quoting E.E.O.C. v. Penton Indus. Pub. Co., 851 F.2d 835, 837-38 (6th Cir.1988)); see also Anderson v. City of Bristol, 6 F.3d 1168, 1174-75 (6th Cir.1993); Haithcock v. Frank, 958 F.2d 671, 677-78 (6th Cir.1992). The first category of continuing violations “arises where there is some evidence of present discriminatory activity giving rise to a claim of a continuing violation_” Dixon, 928 F.2d at 216. In Dixon, this Court explained: The rationale underlying this category is that the employer commits an illegal act, such as giving unequal pay for equal work, each time the employer dispenses the unequal pay. Hall v. Ledex, Inc., 669 F.2d 397, 398 (6th Cir.1982). This result follows from the fact that paying unequal wages for equal work is in itself the forbidden discriminatory act. It is irrelevant that the employer has committed the same illegal act at other times prior to the beginning of the relevant limitations period. Id. The second category of continuing violations arises where there “has occurred ‘a longstanding and demonstrable policy of discrimination.’” Id. at 217 (quoting Penton Indus., 851 F.2d at 838). “Unrelated incidents of discrimination will not suffice to invoke this exception; rather there must be a continuing ‘over-arching policy of discrimination.’ ” Id. (quoting Janikowski, 823 F.2d at 948); see Haithcock, 958 F.2d at 678. No matter how favorably construed, the facts pled by the plaintiffs cannot establish a continuing violation. The plaintiffs are complaining of a series of discrete and separate acts that, at best, are separate incidents of discrimination and are not sufficient, even when the plaintiffs’ pleadings are liberally construed, to establish an “over-arching policy of discrimination.” 3. Continuing Conspiracy Theory Plaintiffs next assert a “continuing conspiracy” theory, relying on White v. Bloom, 621 F.2d 276 (8th Cir.1980), cert. denied, 449 U.S. 995, 101 S.Ct. 533, 66 L.Ed.2d 292 (1980), and cert. denied, 449 U.S. 1089, 101 S.Ct. 882, 66 L.Ed.2d 816" }, { "docid": "23351024", "title": "", "text": "plaintiffs seem to claim that under the continuing violation doctrine, they may bring an action at any time, so long as the allegedly discriminatory statutory policy against double-dipping remains in effect. Before the district court, plaintiffs mentioned the possibility of a continuing violation only briefly in passing, with the result that the court omitted all reference to such contentions from its opinion. However, we have decided that despite this unfortunate posture, we shall address plaintiffs contentions with respect to this issue. Our policy of measuring the limitations period beginning only from the time when the plaintiff knew or should have known of the injury sometimes is counted as one aspect of continuing violation theory. Stewart v. CPC International, Inc., 679 F.2d 117, 120 (7th Cir.1982); Conlin, 890 F.2d at 815. More typically, however, courts view “continuing violations” as falling into two categories of “narrowly limited exceptions” to the usual rule that “statutes of limitations ... are triggered at the time the alleged discriminatory act occurred.” E.E.O.C. v. Penton Industrial Pub. Co., Inc., 851 F.2d 835, 837-38 (6th Cir.1988). Because the facts are stipulated, our only task is to determine, as a matter of law, whether Dixon’s and Toki’s situation falls into either of the two categories. A. The First Category “The first category [of continuing violation] arises where there is some evidence of present discriminatory activity giving rise to a claim of a continuing violation; that is, where an employer continues presently to impose disparate work assignments or pay rates between similarly situated employee groups.” Id. at 838 (emphasis in original). The rationale underlying this category is that the employer commits an illegal act, such as giving unequal pay for equal work, each time the employer dispenses the unequal pay. Hall v. Ledex, Inc., 669 F.2d 397, 398 (6th Cir.1982). This result follows from the fact that paying unequal wages for equal work is in itself the forbidden discriminatory act. It is irrelevant that the employer has committed the same illegal act at other times prior to the beginning of the relevant limitations period. See Bazemore v. Friday, 478 U.S." }, { "docid": "23625853", "title": "", "text": "her rights.” Dixon v. Anderson, 928 F.2d 212, 215 (6th Cir.1991). The district court properly concluded that reasonable minds could not differ that the firefighters had reason to know of the injuries caused by their transfers more than a year before they filed suit. The fact that the firefighters were alerted to the need to protect their rights is evidenced by the October 2, 1995, grievances filed by the firefighters with the Knoxville Civil Service Merit Board, alleging that the transfers were in retaliation for the exercise of First Amendment rights. Accordingly, the district court held that the firefighters’ transfer claims were barred due to the fact that the statute of limitations was triggered more than a year preceding the October 24, 1996, date of the lawsuit. In an effort to sidestep the one year Tennessee statute of limitations, the plaintiffs argue for application of the “continuing violation” doctrine in such a way as to toll the limitations period, rendering the transfer claims timely. The Sixth Circuit has previously recognized two distinct categories of continuing violations, namely, those alleging serial violations and those identified with a longstanding and demonstrable policy of discrimination. Compare Haithcock v. Frank, 958 F.2d 671 (6th Cir.1992) with Alexander v. Local 496, Laborers’ Int’l Union of North America, 177 F.3d 394 (6th Cir.1999). Recent Sixth Circuit law summarizes the two categories as follows: The first category arises where there is some evidence of present discriminatory activity giving rise to a claim of continuing violation such as where an employer continues to presently imposes [sic] disparate work assignments or gives unequal pay for equal work.... The second category of continuing violation arises where there has occurred a longstanding and demonstrable policy of discrimination. This requires a showing by a preponderance of the evidence that some form of intentional discrimination against the class of which plaintiff was a member was the company’s standing operating procedure. Burzynski v. Cohen, 264 F.3d 611, 618 (6th Cir.2001) (internal quotations and citations omitted). This Circuit employs the continuing violations doctrine most commonly in Title VII cases, and rarely extends it to §" }, { "docid": "8685538", "title": "", "text": "29, 1995 because these otherwise untimely claims are part of a “continuing violation” and thus not barred by the limitations period. The Sixth Circuit has applied the continuing violation doctrine, developed under Title VII, to discrimination claims brought under Section 1981. See, e.g., Evans v. Toys R Us, Inc., No. 99-3233, 2000 WL 761803, at *6-7 (6th Cir. June 2, 2000); Harper v. BP Exploration & Oil, Inc., No. 96-5854, 1998 WL 45487, at *4 (6th Cir. Jan.27, 1998). The Sixth Circuit has traditionally limited this equitable exception to the statute of limitations to two categories of claims: The first category arises where there is some evidence of present discriminatory activity giving rise to a claim of continuing violation such as where an employer continues to presently imposes [sic ] disparate work assignments or gives unequal pay for equal work.... The second category of continuing violation arises where there has occurred a longstanding and demonstrable policy of discrimination. This requires a showing by a preponderance of the evidence that some form of intentional discrimination against the class of which plaintiff was a member was the company’s standing operating procedure. Burzynski v. Cohen, 264 F.3d 611, 618 (6th Cir.2001) (internal quotations and citations omitted). See also Evans, supra, at *6. In Burzynski, the Sixth Circuit rejected the application of the continuing violation doctrine to save claims by the plaintiff that he had been discriminated against in his non-selection for various positions, only one of which was the subject of a timely filing. Id. at 619. The Court stated: “Simply alleging discrete acts of non-selections is not sufficient to establish a continuing violation.” Id. Under this reasoning, Plaintiffs claims for failure to promote arising outside the 4-year period identified above would not be saved by the continuing violation doctrine. A recent decision of the Supreme Court confirms this conclusion. In National Railroad Passenger Corp. v. Morgan, — U.S. -, 122 S.Ct. 2061, 158 L.Ed.2d 106 (2002), the Supreme Court considered whether the continuing violation doctrine would excuse a plaintiffs failure to file a timely administrative charge under Title VII to challenge alleged" }, { "docid": "23625852", "title": "", "text": "the duration of the statute of limitations for § 1983 actions is governed by state law; however, federal standards govern when the statute begins to run. See Wilson v. Garcia, 471 U.S. 261, 267, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Sevier v. Turner, 742 F.2d 262, 272 (6th Cir.1986). Tennessee law provides for a one year statute of limitations for § 1983 actions. See Tenn.Code Ann. § 28-3-104(a)(3); Berndt v. Tennessee, 796 F.2d 879, 883 (6th Cir.1986). The discriminatory transfers that are the subject of this appeal occurred in September 1995, but the plaintiffs did not file suit until October 24,1996. Ordinarily, the “discovery rule” applies to establish the date on which the statute of limitations begins to run, ie., the date when the plaintiff knew or through the exercise of reasonable diligence should have known of the injury that forms the basis of his action. Sevier, 742 F.2d at 273. This test is an objective one, and the Court determines “what event should have alerted the typical lay person to protect his or her rights.” Dixon v. Anderson, 928 F.2d 212, 215 (6th Cir.1991). The district court properly concluded that reasonable minds could not differ that the firefighters had reason to know of the injuries caused by their transfers more than a year before they filed suit. The fact that the firefighters were alerted to the need to protect their rights is evidenced by the October 2, 1995, grievances filed by the firefighters with the Knoxville Civil Service Merit Board, alleging that the transfers were in retaliation for the exercise of First Amendment rights. Accordingly, the district court held that the firefighters’ transfer claims were barred due to the fact that the statute of limitations was triggered more than a year preceding the October 24, 1996, date of the lawsuit. In an effort to sidestep the one year Tennessee statute of limitations, the plaintiffs argue for application of the “continuing violation” doctrine in such a way as to toll the limitations period, rendering the transfer claims timely. The Sixth Circuit has previously recognized two distinct categories of continuing" }, { "docid": "23351036", "title": "", "text": "it was incumbent upon the lower court to, at a minimum, conduct an evaluation of plaintiffs’ continuing violation claim in light of the facts stated in the complaint. Perez v. Laredo Junior College, 706 F.2d 731, 734 (5th Cir.1983), cert. denied, 464 U.S. 1042, 104 S.Ct. 708, 79 L.Ed.2d 172 (1984) (allegation of continuing violation must be evaluated in the light of the facts stated in the complaint and those adduced in support of, or against, the motion for summary judgment.); Dumas v. Town of Mount Vernon, Ala., 612 F.2d 974, 977 (5th Cir.1980) (it is incumbent on the court to analyze the specific claims of continuous discrimination to make sure true continuing violations have been properly alleged). Therefore, I would remand this case to the district court to determine whether plaintiffs’ complaint does not fall under the two-year statute of limitations because of the “continuing violation” doctrine. However, since the majority has chosen to decide the issue of whether plaintiffs established a continuing violation claim, it is necessary that I address it. II. The precise contours of the continuing violation doctrine are at best unclear. Notwithstanding the muddled development of this doctrine, however, the circumstances before us present a classic case of a continuing violation. The majority explains the continuing violation doctrine in two categories. Under the first category, a continuing violation “arises where there is some evidence of present discriminatory activity giving rise to a claim of a continuing violation[.]” Under the second category, a continuing violation “arises where there has occurred a ‘longstanding and demonstrable policy of discrimination’ ... [and] a specific allegedly discriminatory act against the plaintiff [has occurred] within the relevant limitations period[.]” The majority draws these categories from this court’s language in E.E.O.C. v. Penton Industrial, 851 F.2d 835, 838 (6th Cir.1988). In applying these categories to this case, however, the majority failed to correctly apply the first category and misstated the second category. III. The majority asserts that plaintiffs’ claim involves solely the “effects” of past discrimination. I disagree. The majority’s discussion of the retirement system and its treatment of members and nonmembers" }, { "docid": "23351037", "title": "", "text": "precise contours of the continuing violation doctrine are at best unclear. Notwithstanding the muddled development of this doctrine, however, the circumstances before us present a classic case of a continuing violation. The majority explains the continuing violation doctrine in two categories. Under the first category, a continuing violation “arises where there is some evidence of present discriminatory activity giving rise to a claim of a continuing violation[.]” Under the second category, a continuing violation “arises where there has occurred a ‘longstanding and demonstrable policy of discrimination’ ... [and] a specific allegedly discriminatory act against the plaintiff [has occurred] within the relevant limitations period[.]” The majority draws these categories from this court’s language in E.E.O.C. v. Penton Industrial, 851 F.2d 835, 838 (6th Cir.1988). In applying these categories to this case, however, the majority failed to correctly apply the first category and misstated the second category. III. The majority asserts that plaintiffs’ claim involves solely the “effects” of past discrimination. I disagree. The majority’s discussion of the retirement system and its treatment of members and nonmembers is one of semantics. To be sure, it is not a civil rights violation to treat two employees differently where one is a member of a retirement system and the other is not. However, if the determination of membership status itself encroaches upon one’s right to equal protection and membership status is “continually” denied due to such encroachment, a violation may be present. Perez v. Laredo Junior College is strikingly similar to the present case. In Perez plaintiff became a faculty member of Laredo Junior College in 1968. Plaintiff held a master’s degree in mathematics and taught mathematics at the College. In 1975, plaintiff decided to work on a Doctor of Philosophy degree in Educational Administration and received his Ph.D. degree in 1977. “In 1978, he sought additional compensation pursuant to Laredo’s policy of granting a salary increase when a faculty member received a doctorate. His department head denied the increase because such compensation was due under the college’s pay policies only if the doctoral degree was in the instructor’s teaching field, and [plaintiff] was" }, { "docid": "19378842", "title": "", "text": "Pub. Co., 851 F.2d 835, 837 n. 5 (6th Cir.1988). In this case, plaintiff Ronald Colvin first filed an EEOC charge against LIUNA on September 7, 1989. From this filing date, the 300-day statute of limitations applicable to Title VII actions filed in deferral states normally would preclude consideration of alleged violations occurring prior to November 11, 1988. Based on this chronology, LIUNA argues that none of the allegedly discriminatory acts occurring before this date supports a finding of liability against it. Because we conclude that the defendants, including LIUNA, are guilty of a continuing violation, as explained below, this argument is unavailing. This court has long recognized that an ongoing, continuous series of discriminatory acts may be challenged if one of those discriminatory acts occurred within the limitations period. See, e.g., Haithcock v. Frank, 958 F.2d 671, 677 (6th Cir.1992); see also Dixon v. Anderson, 928 F.2d 212, 216 (6th Cir.1991). “If a continuing violation is shown, a plaintiff is entitled to have a court consider all relevant actions allegedly taken pursuant to the employer’s discriminatory policy or practice, including those that would otherwise be time barred.” Van Zant v. ELM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir.1996). We view continuing violations as falling into two categories of narrowly limited exceptions to the usual rule that statutes of limitations are triggered at the time the alleged discriminatory act occurred. See Haithcock, 958 F.2d at 677. The first category of continuing violations arises “where there is some evidence of present discriminatory activity giving rise to a claim of a continuing violation; that is where an employer continues presently to impose disparate work assignments or pay rates between similarly situated groups.” Dixon, 928 F.2d at 216. However, “at least one of the forbidden discriminatory acts must have occurred within the relevant limitations period.” Id. The second category of continuing violations arises “where there has occurred a longstanding and demonstrable policy of discrimina-tion_ Unrelated incidents of discrimination will not suffice to invoke this exception; rather there must be a continuing over-arching policy of discrimination.” Id. at 217 (internal quotations omitted)." }, { "docid": "5416178", "title": "", "text": "Halevan cites the continuing violation theory which is an equitable exception to the time limits for filing an administrative complaint. The Sixth Circuit articulated the continuing violation theory in Haith cock v. Frank, stating that “discriminatory incidents which occur beyond the limitations period are actionable where a plaintiff ... challenges not just one incident ... but an unlawful practice that continues into the limitation period ...” 958 F.2d 671, 677 (6th Cir.1992) (internal quotations omitted). The Court delineated two categories of continuing violations. The first category arises where there is some evidence of present discriminatory activity giving rise to a claim of continuing violation such as where an employer continues to presently imposes disparate work assignments or gives unequal pay for equal work. Id. The second category of continuing violation arises where there has occurred a long-standing and demonstrable policy of discrimination. This requires a showing by a preponderance of the evidence “that some form of intentional discrimination against the class of which plaintiff was a member was the company’s ‘standing operating procedure.’ ” EEOC v. Penton Indus. Publ’g Co., 851 F.2d 835, 838 (6th Cir.1988). In the case at bar, Halevan has failed to show either present discriminatory activity giving rise to a claim of continuing violation or a longstanding and' demonstrable policy of discrimination. Halevan’s complaint does not allege the circumstances of the non-selections, nor is there evidence of a discriminatory animus linking the various non-selections. See Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir.1997) (finding no continuing violation where employee presented no evidence of a connection between job reassignments and discriminatory animus). In addition, there is no evidence in the record to suggest that the defendant had a demonstrable policy of discrimination. Simply alleging discrete acts of non-selections is not sufficient to establish a continuing violation. See Davis v. Ermco Mfg, No. 99-5322, 2000 WL 687688 at *3, 2000 U.S.App. LEXIS 11455, at *10 (6th Cir, May 15, 2000) (“[plaintiff] complains of a series of discrete and separate acts that may constitute individual instances of disparate treatment but do not, even when considered together," }, { "docid": "12722614", "title": "", "text": "In asserting that they may rely upon all of the LDC decisions to support their fair representation claim, plaintiffs contend that such decisions constitute a “continuing violation.” When a continuing violation is found, “a plaintiff is entitled to have the court consider all relevant actions allegedly taken pursuant to the [wrongful] policy or practice, including those that would otherwise be time barred.” Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir.2003) (internal quotation marks and citation omitted). This court most commonly applies the continuing-violation doctrine in Title VII cases, id., but has considered applying it to claims under § 1983, see, e.g., Tolbert v. Ohio Dep’t of Transp., 172 F.3d 934, 940-41 (6th Cir.1999), and the Age Discrimination in Employment Act, see e.g., Sherman v. Chrysler Corp., 47 Fed.Appx. 716, 721 (6th Cir.2002) (unpublished). We assume for purposes of argument that this doctrine could also be applied to a fair representation claim. See Noble v. Chrysler Motors Corp., Jeep Div., 32 F.3d 997, 1000-01 (6th Cir.1994). This court recognizes two categories of continuing violation. The first is “where the plaintiff can show prior [wrongful] activity that continues into the present,” and the second is “where the plaintiff can show a longstanding and demonstrable policy of discrimination.” Bell v. Ohio State Univ., 351 F.3d 240, 247 (6th Cir.2003) (internal quotation marks and citation omitted). In this case, plaintiffs do not assert that the statute of limitations should be tolled under the second continuing-violation category. Accordingly, we will not address it. Under the first category, “plaintiffs are ... precluded from establishing a continuing violation exception by proof that the alleged [wrongful] acts ... occurring prior to the limitations period are sufficiently related to those occurring within the limitations period.” Sharpe, 319 F.3d at 268 (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). Thus, “discrete acts of which [the plaintiffs were] immediately aware when they occurred,” Bell, 351 F.3d at 248, such as “termination, failure to promote, denial of transfer, [and] refusal to hire,” do not constitute a continuing violation. Morgan, 536 U.S. at" }, { "docid": "5416177", "title": "", "text": "to the district court, Halevan alleges that beginning in March 1991, he applied for over forty vacancy announcements to fill GS-510-13 positions (“other non-selections”). However, 29 U.S.C. § 633a(d) provides: When the individual has not filed a complaint concerning age discrimination with the Commission, no civil action may be commenced by any individual under this section until the individual has given the Commission not less than thirty days’ notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred. The record is clear, that the instant suit was filed at least four years after these other non-selections occurred, which is well outside of the 180-day window provided for by statute. Thus, the district court properly found that the only claim that was properly before the court was Hale-van’s non-selection for JOA 94-088-LK. Halevan contends that the other non-selections are, nonetheless, properly before the court on the basis of their relationship to the one timely claim (his non-selection for JOA 94-088-LK). Specifically, Halevan cites the continuing violation theory which is an equitable exception to the time limits for filing an administrative complaint. The Sixth Circuit articulated the continuing violation theory in Haith cock v. Frank, stating that “discriminatory incidents which occur beyond the limitations period are actionable where a plaintiff ... challenges not just one incident ... but an unlawful practice that continues into the limitation period ...” 958 F.2d 671, 677 (6th Cir.1992) (internal quotations omitted). The Court delineated two categories of continuing violations. The first category arises where there is some evidence of present discriminatory activity giving rise to a claim of continuing violation such as where an employer continues to presently imposes disparate work assignments or gives unequal pay for equal work. Id. The second category of continuing violation arises where there has occurred a long-standing and demonstrable policy of discrimination. This requires a showing by a preponderance of the evidence “that some form of intentional discrimination against the class of which plaintiff was a member was the company’s ‘standing operating procedure.’ ” EEOC" }, { "docid": "23421665", "title": "", "text": "under Title VII where both claims present the same conduct and evidence. See Buntin, 134 F.3d at 801; Korte, 909 F.2d at 959. Because we hold that the EPA verdict was legally sound, Kovacevich is also entitled to prevail on her Title VII disparate treatment claim regarding wage discrimination. We remand for a determination of damages for this claim. 2. The district court also denied reinstatement of Kovacevich’s other Title VII disparate treatment claims — for denial of promotion, disparate workloads, and denial of salary adjustment — because it found them to be barred by the statute of limitations. In doing so, it rejected Kovacevich’s “continuing violation” argument. We agree with the district court’s conclusion. The “continuing violation” doctrine provides that when “there is an ongoing, continuous series of discriminatory acts, they may be challenged in their entirety as long as one of those discriminatory acts falls within the limitations period.” Haithcock v. Frank, 958 F.2d 671, 677 (6th Cir.1992). In other words, when a continuing violation is shown, “a plaintiff is entitled to have a court consider all relevant actions allegedly taken pursuant to the employer’s discriminatory policy or practice, including those that would otherwise be time barred.” Alexander v. Local 496, Laborers’ Int’l Union of N. Am., 177 F.3d 394, 408 (6th Cir.1999); see also Held v. Gulf Oil Co., 684 F.2d 427, 430 (6th Cir.1982). This Court has held that continuing violations may be shown in one of two ways. The first is “where there is some evidence of present discriminatory activity giving rise to a claim of a continuing violation,” and “at least one of the forbidden discriminatory acts [has] occurred within the relevant limitations period.” Haithcock, 958 F.2d at 678 (citation omitted) (emphasis in original). The second type of continuing violation exists when a plaintiff has demonstrated a longstanding and over-arching policy of discrimination. See id. This requires a showing by a preponderance of the evidence “that some form of intentional discrimination against the class of which plaintiff was a member was the company’s ‘standing operating procedure.’ ” EEOC v. Penton Indus. Publ’g Co., 851" }, { "docid": "23625854", "title": "", "text": "violations, namely, those alleging serial violations and those identified with a longstanding and demonstrable policy of discrimination. Compare Haithcock v. Frank, 958 F.2d 671 (6th Cir.1992) with Alexander v. Local 496, Laborers’ Int’l Union of North America, 177 F.3d 394 (6th Cir.1999). Recent Sixth Circuit law summarizes the two categories as follows: The first category arises where there is some evidence of present discriminatory activity giving rise to a claim of continuing violation such as where an employer continues to presently imposes [sic] disparate work assignments or gives unequal pay for equal work.... The second category of continuing violation arises where there has occurred a longstanding and demonstrable policy of discrimination. This requires a showing by a preponderance of the evidence that some form of intentional discrimination against the class of which plaintiff was a member was the company’s standing operating procedure. Burzynski v. Cohen, 264 F.3d 611, 618 (6th Cir.2001) (internal quotations and citations omitted). This Circuit employs the continuing violations doctrine most commonly in Title VII cases, and rarely extends it to § 1983 actions. See, e.g., LRL Properties v. Portage Metro Hous. Auth., 55 F.3d 1097, 1106 n. 3 (6th Cir.1995). When a continuing violation is found, “a plaintiff is entitled to have the court consider all relevant actions allegedly taken pursuant to the employer’s discriminatory policy or practice, including those that would otherwise be time barred.” Alexander, 177 F.3d at 408 (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir.1996)). The firefighters submit several post-transfer allegedly discriminatory actions as evidence of a continuing violation, specifically, the denial of merit pay (announced in 1996), the refusal to consider plaintiffs for merit pay in 1996, and Ashe’s refusal to return the firefighters to their preferred locations. Previous “continuing violation” law must be reexamined in light of the Supreme Court’s recently imposed limits on the viability of the doctrine. In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2070, 153 L.Ed.2d 106 (2002), the Court held that when an employee seeks redress for discrete acts of discrimination or retaliation, the" }, { "docid": "9742950", "title": "", "text": "general rule. One of the exceptions to the general rule is the continuing violation doctrine. Under this doctrine, “where a plaintiff, pursuant to [Title VII], challenges not just one incident of conduct violative of the Act, but an unlawful practice that continues into the limitations period, the complaint is timely when it is filed within [300] days of the last asserted occurrence of that practice.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81, 102 S.Ct. 1114, 1125, 71 L.Ed.2d 214 (1982); Hull v. Cuyahoga Valley Bd. of Educ., 926 F.2d 505, 510-11 (6th Cir.1991); Held v. Gulf Oil Co., 684 F.2d 427, 430 (6th Cir.1982). There are two categories of continuing violations. The first category arises “where there is some evidence of present discriminatory activity giving rise to a claim of a continuing violation.” Haithcock v. Frank, 958 F.2d 671, 677-78 (6th Cir.1992) (quoting Dixon v. Anderson, 928 F.2d 212, 216-17 (6th Cir.1991)); see also Equal Employment Opportunity Comm’n v. Penton Indus. Pub. Co., 851 F.2d 835, 837-38 (6th Cir.1988). The second category of continuing violation arises “where there has been a longstanding and demonstrable policy of discrimination.” Id. The Defendant contends that the Plaintiffs’ allegations fail to state a claim for either type of continuing violation. The court agrees that Plaintiffs have failed to allege a longstanding and demonstrable policy of discrimination, as this second category of continuing violation requires that some form of discrimination be “standard operating procedure” for the employer. Penton Indus., 851 F.2d at 838 (quoting Jewett v. ITT Corp., 653 F.2d 89, 91-92 (3d Cir.), cert. denied, 454 U.S. 969, 102 S.Ct. 515, 70 L.Ed.2d 386 (1981)). However, the court finds that the Plaintiffs have successfully alleged a continuing violation of the first type, the occurrence of “present” discriminatory activity. Contrary to Defendant’s assertions, this type of continuing violation does not require an allegation that the discriminatory activity has continued into the present time. “Present” or “current” means present within the applicable limitations period. See Haithcock, 958 F.2d at 678; Dixon, 928 F.2d at 216; Hull, 926 F.2d at 510-11; Penton Indus., 851 F.2d" }, { "docid": "8685537", "title": "", "text": "v. Shoney’s, Inc., 145 F.Supp.2d 934, 938 (W.D.Tenn.2001). This court is persuaded that the 4-year statute of limitations created by 28 U.S.C. § 1658 should apply to Plaintiffs Section 1981 claim, for the reasons outlined by other district courts within this circuit and in view of the Sixth Circuit’s treatment of the issue in Sabbatine. Therefore, the court concludes that Plaintiff may premise his Section 1981 claim on adverse employment actions that occurred on or after June 29, 1995, the four-year mark preceding the date he filed this lawsuit. Any claims premised on actions prior to that date are time-barred for purposes of Section 1981. Therefore, Plaintiffs Section 1981 claim is limited to challenging the decisions by the Railroad with respect to the three Mechanical Supervisor positions filled by the Railroad in Cincinnati, Ohio in October 1999 and March 2000, by Jennifer Bailey, Mike Chambers, and Walt Davis, respectively. B. Continuing Violation Doctrine Plaintiff argues that he may nonetheless recover under Section 1981 for acts of alleged racial discrimination or retaliation occurring prior to June 29, 1995 because these otherwise untimely claims are part of a “continuing violation” and thus not barred by the limitations period. The Sixth Circuit has applied the continuing violation doctrine, developed under Title VII, to discrimination claims brought under Section 1981. See, e.g., Evans v. Toys R Us, Inc., No. 99-3233, 2000 WL 761803, at *6-7 (6th Cir. June 2, 2000); Harper v. BP Exploration & Oil, Inc., No. 96-5854, 1998 WL 45487, at *4 (6th Cir. Jan.27, 1998). The Sixth Circuit has traditionally limited this equitable exception to the statute of limitations to two categories of claims: The first category arises where there is some evidence of present discriminatory activity giving rise to a claim of continuing violation such as where an employer continues to presently imposes [sic ] disparate work assignments or gives unequal pay for equal work.... The second category of continuing violation arises where there has occurred a longstanding and demonstrable policy of discrimination. This requires a showing by a preponderance of the evidence that some form of intentional discrimination against" }, { "docid": "23625858", "title": "", "text": "the one-year Tennessee statute of limitations does not violate the Due Process Clause as arbitrary and capricious). Moreover, the continuing violation doctrine arose in the context of the “obviously quite short deadlines” set forth in Title VII, and the relatively longer limitations periods provided by states for § 1983 actions reinforces as a policy matter Morgan’s applicability to these claims. See Wilson, 471 U.S. at 279, 105 S.Ct. 1938 (“It is most unlikely that the period of limitations applicable to [§ 1983 claims] ever was, or ever would be, fixed in a way that would discriminate against federal claims, or be inconsistent with federal law in any respect.”). It cannot reasonably be disputed that the firefighters’ claims involve discrete acts and not a hostile environment, as they were made aware of the retaliatory transfers on specific dates in September 1995. The serial violations component of the continuing violations doctrine employed by this Court is sufficiently analogous to the Ninth Circuit line of cases struck down in Morgan. Tenenbaum v. Caldera, Nos. 00-2394, 01-1704, 2002 WL 2026347, at *3 (6th Cir. Aug.29, 2002). Accordingly, Morgan overturns prior Sixth Circuit law addressing serial violations, i.e., plaintiffs are now precluded from establishing a continuing violation exception by proof that the alleged acts of discrimination occurring prior to the limitations period are sufficiently related to those occurring within the limitations period. The second category of continuing violations, involving a longstanding and demonstrable policy of discrimination, is not implicated by Morgan. Tenenbaum, 2002 WL 2026347, at *2 n. 3. To establish this category of continuing violation, “appellant must demonstrate something more than the existence of discriminatory treatment in his case.” Haithcock, 958 F.2d at 679 (citing a discriminatory policy appearing in a statute or an affirmative action plan as examples of this second category). “The preponderance of the evidence must establish that some form of intentional discrimination against the class of which plaintiff was a member was the company’s standing operating procedure.” EEOC v. Penton Indus. Publishing Co., 851 F.2d 835, 838 (6th Cir.1988) (citations omitted). Here, the plaintiffs do not represent a class, and" } ]

[ { "docid": "3932077", "title": "", "text": "each inmate was allowed to work at his own pace, that Lewis was a particularly fast worker, and that Lewis complained to every supervisor that he worked too hard but could have chosen to do less work. The record simply contains no affirmative evidence from which a jury could find the requisite race discrimination motive by Jacks or Linzy in assigning work to Lewis. B. Retaliation Claims. Alternatively, Lewis contends that Jacks increased his work load after May 24, 2000, in retaliation for his filing a prison grievance against her. To succeed on his § 1983 retaliation claim, Lewis must prove that he engaged in protected activity and that defendants, to retaliate for the protected activity, took adverse action against Lewis that would chill a person of ordinary firmness from engaging in that activity. See Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir.2004), cert, denied, - U.S.-, 126 S.Ct. 371, 163 L.Ed.2d 140 (2005). The filing of a prison grievance, like the filing of an inmate lawsuit, is protected First Amendment activity. Dixon v. Brown, 38 F.3d 379, 379 (8th Cir.1994). Retaliatory action that worsens an inmate’s working conditions can be sufficiently adverse to be actionable under § 1983. See Madewell v. Roberts, 909 F.2d 1203, 1204-06 (8th Cir.1990). The district court concluded that Lewis was a fast worker by choice and failed to show that Jacks pressured him or required him to perform more work than other inmates. On appeal, Lewis argues this overlooks his testimony that Linzy told him he would have to work twice as hard after taking two days off to have a tooth pulled in June 2002. But this argument is unrelated to his claim that Jacks retaliated after he filed a grievance in May 2000. To avoid summary judgment, Lewis must submit “affirmative evidence [of] a retaliatory motive.” Wilson v. Northcutt, 441 F.3d 586, 592 (8th Cir.2006), quoting Crawford-El. Linzy testified that Lewis complained “to every supervisor down there” that he had to do all the work. Lewis admitted that the factory manager, responding to his July 2002 complaint, told him to “just" } ]

[ { "docid": "1421647", "title": "", "text": "off water for five days because the prisoner used the prison grievance system was sufficient to state a retaliation claim); Burgess, 39 F.3d at 218 (threat made in retaliation for a prisoner’s use of the prison grievance system is sufficient to state a First Amendment retaliation claim). A reasonable jury could conclude that Blair’s placement of Santiago in a cell without his personal property, proper facilities, bedding, or clothing and Blair’s threat that things would get worse, issued after hearing Santiago complain that he was being retaliated against, are adverse actions sufficient to chill a prisoner of ordinary firmness from engaging in the prison grievance process. See Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir.1999) (holding that “[h]arassment, physical threats, and transfer to the area of the prison used to house mentally disturbed inmates, especially combined with the conditions allegedly present there,” would likely deter a prisoner of ordinary firmness from exercising a right to access the courts). Santiago has also satisfied the causal connection prong regarding the two adverse actions taken by Blair. See Revels, 382 F.3d at 876. When Santiago was first placed in the cell, he asked the correctional officer why he was being placed in a cell without his personal property, proper bedding, a working sink, or a working toilet. The correctional officer responded, “That’s per Lieutenant Blair. Until you learn how to act, you’re not going to get any of those things.” Blair’s threat that things would get worse was issued the following day immediately after hearing Santiago complain that his placement in the cell was retaliation for pursuing his grievance. Taken in the light most favorable to Santiago, a reasonable jury could conclude that these facts demonstrate that Blair took the above-described adverse actions because of Santiago’s continued use of the prison grievance procedure. Thus, Blair is not entitled to qualified immunity on Santiago’s retaliation claim. III. Conclusion We affirm that portion of the district court’s order which denied qualified immunity with respect to Santiago’s deliberate indifference claim against Branch for the delay in allowing Santiago to wash off the pepper spray, the" }, { "docid": "22647612", "title": "", "text": "sufficient to chill an individual of ordinary firmness from speaking to the press about such matters, the plaintiffs met their initial burden and were allowed to proceed with the retaliation case. In Bart itself, a public employee First Amendment retaliation case, Judge Posner acknowledged that “since there is no justification for harassing people for exercising their constitutional rights [the effect on freedom of speech] need not be great in order to be actionable.” Bart, 677 F.2d at 625. Continuing, however, he stated that as a tort statute, § 1983 requires injury and “[i]t would trivialize the First Amendment to hold that harassment for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary firmness from that exercise.... ” Id. A panel of the U.S. Court of Appeals for the D.C. Circuit, on its initial review of Crawford-El, approved the Bart standard as to the level of injury the prisoner had to show in that case and then remanded to the district court for repleading. Crawford-El v. Britton, 951 F.2d 1314, 1322 (D.C.Cir.1991). When the case returned after remand, the en banc court commented with approval on the district court’s application of a “sensible” standard: whether an official’s acts “would chill or silence a ‘person of ordinary firmness’ from future First Amendment activities.” Crawford-El v. Britton, 93 F.3d 813, 826 (D.C.Cir.1996) (quoting 844 F.Supp. 795, 801 (D.D.C.1994) (quoting Bart)). The Supreme Court left this standard undisturbed. We agree with the reasoning in these cases and conclude that it is the appropriate standard by which to determine what type of action is sufficiently adverse to be cognizable in a retaliation claim under § 1983. This standard is amenable to all retaliation claims. Thus far, only the D.C. Circuit in Crawford-El has explicitly used the Bart standard in a prisoner retaliation case, although the Fourth Circuit used a similar standard in a prison setting. ACLU of Maryland v. Wicomico County, 999 F.2d 780 (4th Cir.1993), involved a § 1983 action brought by a paralegal after her contact visits with inmates were discontinued by the" }, { "docid": "1421640", "title": "", "text": "Amendment rights); Cooper v. Schriro, 189 F.3d 781, 784 (8th Cir.1999) (per curiam) (holding that threats to an inmate’s safety after his use of the prison grievance system supported a retaliation claim). As set forth earlier, under Revels a prisoner must demonstrate not only that a correctional officer took an adverse action, but that the action “would chill a person of ordinary firmness from continuing in the [protected] activity.” 382 F.3d at 876. “The ordinary-firmness test is well established in the case law, and is designed to weed out trivial matters from those deserving the time of the courts as real and substantial violations of the First Amendment.” Garcia v. City of Trenton, 348 F.3d 726, 728 (8th Cir.2003). We have adopted the “ordinary-firmness” requirement for First Amendment claims of retaliation, see id., and have applied it in the First Amendment prisoner retaliation context, see Lewis v. Jacks, 486 F.3d 1025, 1029 (8th Cir.2007) (holding that the record contained insufficient evidence that increasing the prisoner’s work load would chill a prisoner of ordinary firmness from using the prison grievance process). The “ordinary-firmness” test is an “objective one, not subjective.” Garcia, 348 F.3d at 729. In determining whether threats of death would chill a prisoner of ordinary firmness from using the prison grievance process, “[t]he question is not whether [Santiago himself] was deterred, though how [Santiago] acted might be evidence of what a reasonable [prisoner] would have done.” Id. Rather, the test is what a prisoner of ordinary firmness would have done in reaction to the death threats. Id. “Ultimately, this sort of question is usually best left to the judgment of a jury....” Id. In the circumstances before us, we conclude that a reasonable jury could find that threats of death, issued by a correctional officer tasked with guarding a prisoner’s segregated cell, would chill a prisoner of ordinary firmness from engaging in the prison grievance process. See Hill v. Lappin, 630 F.3d 468, 474 (6th Cir.2010) (“[T]hreats alone can constitute an adverse action if the threat is capable of deterring a person of ordinary firmness from engaging in protected" }, { "docid": "22079667", "title": "", "text": "his badge number. The defendants do not deny that criticizing a police officer and asking for his badge number is protected speech under the First Amendment. Nor could they. “[CJriticism of public officials lies at the very core of speech protected by the First Amendment.” Naucke, 284 F.3d at 927. They also do not deny that pepper spraying someone in the face “would chill a person of ordinary firmness.” Revels, 382 F.3d at 876. Indeed, “ ‘[t]he effect on freedom of speech may be small, but since there is no justification for harassing people for exercising their constitutional rights it need not be great in order to be actionable.’ ” Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir.2003) (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982) (holding that receiving several parking tickets totaling just $35.00 would chill a person of ordinary firmness)). The defendants argue instead that there is no evidence upon which a reasonable jury could conclude that Kopp pepper sprayed Peterson—even in part—because of his protected speech. Revels, 382 F.3d at 876. “The causal connection is generally a jury question ... [unless] the question is so free from doubt as to justify taking it from the jury.” Id. (quotation omitted). The defendants claim causation is “free from doubt” in this case because there is only one reasonable conclusion from the record before us: Kopp pepper sprayed Peterson as a reasonable reaction to an escalating situation. We disagree. Taking the evidence in the light most favorable to Peterson, as we must for this summary judgment analysis, Peterson has presented affirmative evidence that Kopp pepper sprayed him in retaliation for criticizing him and asking for his badge number. Moments before Kopp used the pepper spray, Peterson had asked for Kopp’s badge number. “Temporal proximity is relevant but not dispositive.” Wilson v. Northcutt, 441 F.3d 586, 592 (8th Cir.2006); Kilpatrick v. King, 499 F.3d 759, 768 (8th Cir.2007) (finding that timing “weighs against an inference of retaliatory intent” when nine months separated the protected speech and adverse action). Here, Peterson went beyond the timing of events," }, { "docid": "20460714", "title": "", "text": "For example, a threat that was allegedly made years prior to the inmate’s suit may fail to render administrative remedies unavailable. The same is true if an inmate is no longer held in the prison in which he experienced retaliatory violence. This objective element ensures that inmates cannot easily circumvent the exhaustion requirement, and provides district courts with a means of quickly filtering out frivolous claims. Only threats that are sufficiently serious and retaliatory acts that are severe enough to deter a reasonable inmate will result in an administrative remedy becoming unavailable for PLRA purposes. As a result, not all — or even most — First Amendment retaliation claims involving the grievance process will be exempt from exhaustion. Such claims do, however, add an additional layer of complexity. The merits of a First Amendment retaliation claim, such as the one brought by Tuckel, may overlap with the objective prong of our test. See Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir.2007) (requiring a plaintiff asserting a First Amendment retaliation claim to show, inter alia, “that the defendant’s actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity”). Nevertheless, demonstrating that an official objectively chilled an inmate from relying on administrative remedies presents a significant challenge in any context. As such, there is little incentive for an inmate to assert baseless retaliation claims rather than simply utilizing a grievance procedure. . Failure to exhaust under the PLRA is an affirmative defense. Jones v. Bock, 549 U.S. 199, 212, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Defendants thus bear the burden of asserting and proving that the plaintiff did not utilize administrative remedies. Id. Once a defendant proves that a plaintiff failed to exhaust, however, the onus falls on the plaintiff to show that remedies were unavailable to him as a result of intimidation by prison officials. Plaintiffs should be afforded an opportunity to counter the exhaustion defense in this manner regardless of whether the issue is asserted by defendants or raised by the court sua" }, { "docid": "23033216", "title": "", "text": "a grievance or pursuing a particular part of the process; and (2) the threat is one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the grievance process that the inmate failed to exhaust. See Hemphill, 380 F.3d at 688 (“The test for deciding whether the ordinary grievance procedures were available must be an objective one: that is, would ‘a similarly situated individual of ordinary firmness’ have deemed them available.” (citation omitted)); cf. Smith v. Mosley, 532 F.3d 1270, 1277 (11th Cir.2008) (noting that an inmate claiming a First Amendment violation based on retaliation for a complaint about prison conditions must show that the discipline “would likely deter a prisoner of ordinary firmness from complaining” (quotation marks and alteration omitted)). The particulars of this standard for determining the availability of administrative remedies where a threat is alleged can be honed against the facts of future cases, with particular attention paid to the special circumstances and security needs of prisons. V. The defendants contend that, even applying a test similar to the one we are adopting, they are still entitled to have Turner’s suit dismissed for two reasons. First, they assert that Warden Meadows’ alleged threat — that he would transfer Turner if he filed another grievance or a lawsuit — was not sufficient to deter Turner from acting because he did act to file this lawsuit. However, as the Second Circuit noted in Hemphill: [Tjhreats or other intimidation by prison officials may well deter á prisoner ... from filing an internal grievance, but not from appealing directly to individuals in positions of greater authority within the prison system, or to external structures of authority such as state or federal courts .... because seeking a criminal investigation or filing a civil rights complaint may enable an inmate to draw outside attention to his complaints, thereby neutralizing threatened retaliatory conduct from prison employees. Hemphill, 380 F.3d at 688. That makes sense to us, but we do not adopt a rule categorically precluding the factfinder from considering the fact that the inmate" }, { "docid": "21165313", "title": "", "text": "guards and other prison officials. In order to establish a First Amendment retaliation claim, plaintiff must show (1) that he engaged in constitutionally protected speech or conduct, (2) that the defendants took adverse action against him, and (3) that there was a causal connection between the protected activity and the adverse action. Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). The Second Circuit has admonished district courts to approach prisoner retaliation claims “with skepticism and particular care,” because “virtually any adverse action taken against a prisoner by a prison official-even those otherwise not rising to the level of a constitutional violation-can be characterized as a constitutionally proscribed retaliatory act.” Dawes, 239 F.3d at 491. Applying these principles, I find that Ballachino is entitled to summary judg.ment. Although it is undisputed that plaintiffs filing of grievances constituted protected conduct, see Graham v. Henderson, 89 F.3d 75, 80 (2d Cir.1996); Franco v. Kelly, 854 F.2d 584, 590 (2d Cir.1988), plaintiff has failed to adduce sufficient evidence to give rise to an issue of fact as to the “adverse action” prong of the test set forth in Dawes. Adverse action, defined objectively, is “retaliatory conduct ‘that would deter a similarly situated individual of ordinary firmness from exercising ... constitutional rights.’ ” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir.2004) (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003)). In that regard, the Second Circuit has observed that “[prisoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before a [retaliatory] action taken against them is considered adverse.” Dawes, 239 F.3d at 491 (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir.1999) (en banc) (per curiam)). If a retaliatory act against an inmate would not be likely to “chill a person of ordinary firmness from continuing to engage” in a protected activity, “the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection.” Dawes, 239 F.3d at 493." }, { "docid": "8620058", "title": "", "text": "July 6 city council meeting and at Carrasco’s request he appeared at other events. But other conduct that comports with the Constitution does not excuse conduct that violates it. Whether Biang would have taken the same action absent Carrasco’s protest on June 28 is a question of fact. Biang may have had safety concerns about a large rally protesting the Towing Ordinance, but the unprecedented application of the Assembly Ordinance to Carrasco three days after her protected speech cannot be ignored. A reasonable jury could find in Carrasco’s favor on this point. Nevertheless, Biang would enjoy qualified immunity as to this claim if applicable law was not clearly established as of July 1, 2004. However, by then it was clear that Biang could not retaliate against a person for protected First Amendment speech. For these reasons, determination of Biang’s qualified immunity defense must await presentation of the facts at trial. Finally, we turn to Carrasco’s chilling claim. The First Amendment prohibits threats of punishment designed to discourage future protected speech. Fairley, 578 F.3d at 525. We apply an objective test: whether the alleged conduct by the defendants would likely deter a person of ordinary firmness from continuing to engage in protected activity. Id.; see Garcia v. City of Trenton, 348 F.3d 726, 728-29 (8th Cir.2003). Again, Carrasco must show that her potential speech was at least a motivating cause of Biang’s threat of punishment. See Greene, 660 F.3d at 978-79; Fairley, 578 F.3d at 525-26. Would a person of ordinary firmness be deterred from holding a rally if called to a meeting by a uniformed officer and told by the police chief and city attorney that the never-used Assembly Ordinance would be enforced, a $1500 permit fee had to be paid, and failure to comply with the Assembly Ordinance would result in a violation of law and denial of future permit applications? Taking the facts in Carrasco’s favor, especially in light of the selective nature of the Assembly Ordinance’s application, a reasonable jury could answer “yes.” Further, a reasonable jury could find that prohibiting Carrasco’s speech was the motivating, or" }, { "docid": "22408089", "title": "", "text": "district court that the Patients’ claim for injunctive relief pertaining to the Annex is moot. See Roubideaux, 570 F.3d at 976 (“All of the Female Inmates have been transferred out of the NDSP, the James River CC, and the Missouri River CC, and there is no suggestion that they might be returned. Their class certification is for injunctive relief, and any equal protection claim arising out of their previous housing in those other facilities is now moot.”); Gladson v. Iowa Dep’t of Corr., 551 F.3d 825, 835 (8th Cir.2009) (“[B]ecause Howrey is no longer incarcerated at the ISP and subject to the allegedly offending policy, his claims are moot.”). B. Retaliation In their complaint, the Patients alleged that DHS officials Ludeman, Mooney, and Erskine, as well as other MSOP staff retaliated against Beaulieu and Yazzie for filing a § 1983 suit on December 7, 2006, by transferring them to the Annex. Additionally, they alleged that these officials retaliated against Beaulieu for filing the instant suit by transferring him to the BTU. To establish a § 1983 claim for retaliation in violation of the First Amendment, a plaintiff must allege (1) that [he] engaged in a protected activity, (2) that the defendants responded with adverse action that would “chill a person of ordinary firmness” from continuing in the activity, and (3) that “the adverse action was motivated at least in part by the exercise of the protected activity.” L.L. Nelson Enters., Inc. v. Cnty. of St. Louis, Mo., 673 F.3d 799, 807-08 (8th Cir.2012) (quoting Revels, 382 F.3d at 876). “In brief, the plaintiff must show the official took the adverse action because the plaintiff engaged in the protected speech.” Revels, 382 F.3d at 876. Although “[t]he causal connection is generally a jury question, ... it can provide a basis for summary judgment when the question is so free from doubt as to justify taking it from the jury.” Id. (quotation and citation omitted). In the prison context, we have observed that prison officials are prohibited from “punish[ing] an inmate because he exercises his constitutional right of access to the courts.”" }, { "docid": "23033215", "title": "", "text": "the initiation of a federal case” (internal quotation marks, alterations, footnote, and citations omitted)); id. at 93-94, 126 S.Ct. at 2387 (“The PLRA also was intended to reduce the quantity and improve the quality of prisoner suits.” (internal quotation marks and citation omitted)). Stated differently, at least some threats disrupt the operation and frustrate the purposes of the administrative remedies process enough that the PLRA’s exhaustion requirement does not allow them. The construction of “availability” that we adopt is beneficial because it reduces any incentive that prison officials otherwise might have to use threats to prevent inmates from exhausting their administrative remedies, and it thereby safeguards the benefits of the administrative review process for everyone. We conclude that a prison official’s serious threats of substantial retaliation against an inmate for lodging or pursuing in good faith a grievance make the administrative remedy “unavailable,” and thus lift the exhaustion requirement as to the affected parts of the process if both of these conditions are met: (1) the threat actually did deter the plaintiff inmate from lodging a grievance or pursuing a particular part of the process; and (2) the threat is one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the grievance process that the inmate failed to exhaust. See Hemphill, 380 F.3d at 688 (“The test for deciding whether the ordinary grievance procedures were available must be an objective one: that is, would ‘a similarly situated individual of ordinary firmness’ have deemed them available.” (citation omitted)); cf. Smith v. Mosley, 532 F.3d 1270, 1277 (11th Cir.2008) (noting that an inmate claiming a First Amendment violation based on retaliation for a complaint about prison conditions must show that the discipline “would likely deter a prisoner of ordinary firmness from complaining” (quotation marks and alteration omitted)). The particulars of this standard for determining the availability of administrative remedies where a threat is alleged can be honed against the facts of future cases, with particular attention paid to the special circumstances and security needs of prisons. V. The defendants contend that," }, { "docid": "1421639", "title": "", "text": "Blair. i. Clubbs Santiago alleges that Clubbs subjected him to two adverse actions: first, he threatened Santiago’s life and, second, he falsified a conduct violation report. Looking first to the alleged death threats, Santiago has produced evidence that Clubbs made at least two statements implying that if Santiago did not drop his excessive force grievance against Blair, he would be found hanging in his cell and that his death would be made to look like a suicide. We have long held that “a threat of retaliation is sufficient injury if made in retaliation for an inmate’s use of prison grievance procedures” to sustain a claim of First Amendment retaliation. Burgess v. Moore, 39 F.3d 216, 218 (8th Cir.1994). This is true especially when the threats are ones of death or serious harm to an inmate’s safety. See, e.g., Burton v. Livingston, 791 F.2d 97, 100-01 (8th Cir.1986) (holding that allegations that a prison guard retaliated against a prisoner by terrorizing him with threats of death, if proved, would constitute a violation of the prisoner’s First Amendment rights); Cooper v. Schriro, 189 F.3d 781, 784 (8th Cir.1999) (per curiam) (holding that threats to an inmate’s safety after his use of the prison grievance system supported a retaliation claim). As set forth earlier, under Revels a prisoner must demonstrate not only that a correctional officer took an adverse action, but that the action “would chill a person of ordinary firmness from continuing in the [protected] activity.” 382 F.3d at 876. “The ordinary-firmness test is well established in the case law, and is designed to weed out trivial matters from those deserving the time of the courts as real and substantial violations of the First Amendment.” Garcia v. City of Trenton, 348 F.3d 726, 728 (8th Cir.2003). We have adopted the “ordinary-firmness” requirement for First Amendment claims of retaliation, see id., and have applied it in the First Amendment prisoner retaliation context, see Lewis v. Jacks, 486 F.3d 1025, 1029 (8th Cir.2007) (holding that the record contained insufficient evidence that increasing the prisoner’s work load would chill a prisoner of ordinary firmness from" }, { "docid": "22079666", "title": "", "text": "Id. (quotation omitted); see also Hartman, 547 U.S. at 256, 126 S.Ct. 1695 (“[W]hen nonretaliatory grounds are in fact insufficient to provoke the adverse consequences, we have held that retaliation is subject to recovery as the but-for cause of official action offending the Constitution.”). In retaliatory arrest cases, we have identified a fourth prong: lack of probable cause or arguable probable cause. Galarnyk v. Fraser, 687 F.3d 1070, 1076 (8th Cir.2012) (‘“Lack of probable cause is a necessary element of a First Amendment retaliatory arrest claim.” (quoting McCabe v. Parker, 608 F.3d 1068, 1075 (8th Cir.2010))); McCabe, 608 F.3d at 1078-79 (finding plaintiffs’ First Amendment claims moot because secret service agent had arguable probable cause for their arrest); accord Redd v. City of Enterprise, 140 F.3d 1378, 1383 (11th Cir.1998). We agree that Kopp is entitled to qualified immunity on Peterson’s retaliatory arrest claim because, as detailed above, Kopp had at least arguable probable cause for the arrest. However, Peterson also claims that Kopp pepper sprayed him in retaliation for criticizing Kopp and asking for his badge number. The defendants do not deny that criticizing a police officer and asking for his badge number is protected speech under the First Amendment. Nor could they. “[CJriticism of public officials lies at the very core of speech protected by the First Amendment.” Naucke, 284 F.3d at 927. They also do not deny that pepper spraying someone in the face “would chill a person of ordinary firmness.” Revels, 382 F.3d at 876. Indeed, “ ‘[t]he effect on freedom of speech may be small, but since there is no justification for harassing people for exercising their constitutional rights it need not be great in order to be actionable.’ ” Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir.2003) (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982) (holding that receiving several parking tickets totaling just $35.00 would chill a person of ordinary firmness)). The defendants argue instead that there is no evidence upon which a reasonable jury could conclude that Kopp pepper sprayed Peterson—even in part—because of his protected speech. Revels," }, { "docid": "1421646", "title": "", "text": "Santiago’s cell door, saying, “things are going to get worse.” Whether these conditions and this statement are themselves a constitutional violation is irrelevant. A prisoner has the “right under the First Amendment to petition for redress of grievances under a prison’s grievance procedures[,]” Nelson, 603 F.3d at 449, and “conduct that retaliates against the exercise of a constitutionally protected right ... is actionable even if the alleged retaliatory conduct does not itself rise to the level of a constitutional violation[,]” Van Wyhe v. Reisch, 581 F.3d 639, 658 (8th Cir.2009). We have held that deprivations and threats such as those allegedly made by Blair are sufficient to support a First Amendment retaliation claim. See, e.g., Nelson, 603 F.3d at 450 (holding that the plaintiff who allegedly was held in isolation in a structurally unfinished and inadequate ward and deprived of access to legal counsel, mail, family, recreation, and phone calls had demonstrated sufficient deprivations to survive summary judgment on a First Amendment retaliation claim); Cooper, 189 F.3d at 784 (allegation that the correctional officer shut off water for five days because the prisoner used the prison grievance system was sufficient to state a retaliation claim); Burgess, 39 F.3d at 218 (threat made in retaliation for a prisoner’s use of the prison grievance system is sufficient to state a First Amendment retaliation claim). A reasonable jury could conclude that Blair’s placement of Santiago in a cell without his personal property, proper facilities, bedding, or clothing and Blair’s threat that things would get worse, issued after hearing Santiago complain that he was being retaliated against, are adverse actions sufficient to chill a prisoner of ordinary firmness from engaging in the prison grievance process. See Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir.1999) (holding that “[h]arassment, physical threats, and transfer to the area of the prison used to house mentally disturbed inmates, especially combined with the conditions allegedly present there,” would likely deter a prisoner of ordinary firmness from exercising a right to access the courts). Santiago has also satisfied the causal connection prong regarding the two adverse actions taken by Blair." }, { "docid": "1421642", "title": "", "text": "conduct.”); Van Deelen v. Johnson, 497 F.3d 1151, 1157 (10th Cir.2007) (holding that the plaintiffs “allegations of physical and verbal intimidation, including a threat by a deputy sheriff to shoot him if he brought any more tax appeals, would surely suffice ... to chill a person of ordinary firmness from continuing to seek redress for (allegedly) unfair property tax assessments”). Further, there is sufficient evidence of a causal connection between Santiago’s use of the grievance process and Clubbs’s death threats to satisfy the third Revels prong. To satisfy the causal connection prong, “the plaintiff must show the official took the adverse action because the plaintiff engaged in the protected speech.” Revels, 382 F.3d at 876. The record indicates that Santiago’s excessive force grievance was officially denied on January 2, 2009, and that his appeal was denied on February 19, 2009. The conversation during which Clubbs threatened Santiago to drop his claim of excessive force or risk being found hanging in his cell occurred three days later, while Santiago was at a crossroads regarding whether to continue pursuing his claim in the courts. In these circumstances, a reasonable jury could conclude that Clubbs issued the death threats because Santiago had filed and pursued his excessive force grievance. Thus, Clubbs is not entitled to qualified immunity regarding the retaliatory death threats. Looking next to the allegation that Clubbs filed a false retaliatory conduct violation against Santiago, we conclude that the claim is without merit. “A prisoner has a cause of action when the prisoner alleges that prison officials filed disciplinary charges based upon false allegations against the prisoner in retaliation for the prisoner’s participation in grievances against prison officials.” Henderson v. Baird, 29 F.3d 464, 469 (8th Cir.1994). “However, claims of retaliation fail if the alleged retaliatory conduct violations were issued for the actual violation of a prison rule.” Hartsfield v. Nichols, 511 F.3d 826, 829 (8th Cir.2008). “Thus, a defendant may successfully defend a retaliatory discipline claim by showing ‘some evidence’ the inmate actually committed a rule violation.” Id Under this standard, “a report from a correctional officer, even if disputed" }, { "docid": "23299990", "title": "", "text": "“that would deter a similarly situated individual of ordinary firmness from exercising ... constitutional rights.” Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003), superseded by 320 F.3d 346, 2003 WL 360053 (2d Cir. Feb. 10, 2003) 2003 U.S.App. LEXIS 13030. In Davis, we made clear that this objective test applies even where a particular plaintiff was not himself subjectively deterred; that is, where he continued to file grievances and lawsuits. Thus, after noting that the Davis plaintiff had engaged in grievance “efforts beyond what is reasonably expected of an inmate with ‘ordinary firmness,’ ” we concluded that the prisoner “should not be denied remedy because his extraordinary efforts resulted in the resolution of grievances that would have deterred a similarly situated individual of ordinary firmness ....” Id. (internal citations and quotation marks omitted). Davis’ retaliation claim was therefore reinstated to permit him to try to adduce facts that would support his assertion “that the alleged retaliation would have deterred a reasonable inmate ....” Id at 354. Relying on Davis, this Court has subsequently dealt summarily with precisely this same issue, in another case brought by the same plaintiff. Defendants contend that both the objective and subjective tests must be met; the former to ensure that the claim is not frivolous, see, e.g., Dawes v. Walker, 239 F.3d 489, 493 (2d Cir.2001) (failure to meet objective test reveals that “the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection”) and the latter to ensure that there is an injury sufficient to grant standing. But, in fact, in the public official retaliation context, we have used the subjective test to gauge both the nature and the extent of the alleged injury, while in prison cases we have deployed the objective test without regard for whether the plaintiff himself was actually chilled. There are several ways to resolve this apparent inconsistency. First, we might conclude that different sorts of retaliation cases are susceptible to different requirements. For example, it is well-settled that public employees alleging retaliation for engaging in protected speech are not normally required to demonstrate" }, { "docid": "1421637", "title": "", "text": "objectively serious medical need, Branch is still entitled to qualified immunity because there is no evidence in the record that he deliberately disregarded that need. The only allegation regarding this issue is that Branch refused to loosen Santiago’s handcuffs. Santiago would have us believe that it was Branch’s action that prevented Santiago from receiving treatment on his wrist. The record does not support such a claim, however, for Branch’s refusal to loosen the handcuffs did not prevent the nurse from treating the laceration on Santiago’s wrist. Further, there is no evidence that the presence or tightness of the handcuffs prevented the nurse from treating the dislocation, as the nurse reexamined Santiago’s uncuffed wrist several hours later and still concluded that it did not warrant further medical treatment. Accordingly, Branch is entitled to qualified immunity regarding this claim of deliberate indifference. C. Retaliation The right to be free from retaliation for availing one’s self of the prison grievance process has been clearly established in this circuit for more than twenty years. Nelson v. Shuffman, 603 F.3d 439, 449-50 (8th Cir.2010). To prevail on a § 1983 claim for retaliation in violation of the First Amendment, Santiago must demonstrate (1) that he engaged in a protected activity; (2) that the government official took adverse action against him that would chill a person of ordinary firmness from continuing in the activity; and (3) that the adverse action was motivated at least in part by the exercise of the protected activity. Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir.2004). Santiago’s amended complaint alleges that Clubbs and Blair retaliated against him in violation of the First Amendment for filing and pursuing his excessive force grievance. Clubbs and Blair do not dispute that Santiago’s use of the prison grievance process satisfies the first prong under Revels. See Haynes v. Stephenson, 588 F.3d 1152, 1155-56 (8th Cir.2009) (“The filing of a prison grievance, like the filing of an inmate lawsuit, is protected First Amendment activity.” (internal quotation marks and citation omitted)). We address separately the remaining two prongs with respect to the allegations against Clubbs and" }, { "docid": "23299989", "title": "", "text": "and, in fact, had admitted that he had not changed his behavior at all as a result of the town’s allegedly adverse actions). Some of these public official cases cast this requirement in terms of standing, see, e.g., Colombo v. O’Connell, 310 F.3d 115, 117 (2d Cir.2002) (holding that plaintiff lacked standing because she could not demonstrate “an actual, non-speculative chilling effect”), while others put the requirement in terms of stating a colorable claim, see, e.g., Curley v. Village of Suffern, 268 F.3d 65, 72-73 (2d Cir.2001). In Curley, for example, we said (at least in that limited public official context) that a plaintiff must prove that (1) she has an interest protected by the First Amendment; (2) defendants’ actions were motivated or substantially caused by his exercise of that right; and (3) defendants’ actions effectively chilled the exercise of her First Amendment right. Id. at 73 (citing Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir.1998)). Defendants concede, however, that in the prison context we have previously defined “adverse action” objectively, as retaliatory conduct “that would deter a similarly situated individual of ordinary firmness from exercising ... constitutional rights.” Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003), superseded by 320 F.3d 346, 2003 WL 360053 (2d Cir. Feb. 10, 2003) 2003 U.S.App. LEXIS 13030. In Davis, we made clear that this objective test applies even where a particular plaintiff was not himself subjectively deterred; that is, where he continued to file grievances and lawsuits. Thus, after noting that the Davis plaintiff had engaged in grievance “efforts beyond what is reasonably expected of an inmate with ‘ordinary firmness,’ ” we concluded that the prisoner “should not be denied remedy because his extraordinary efforts resulted in the resolution of grievances that would have deterred a similarly situated individual of ordinary firmness ....” Id. (internal citations and quotation marks omitted). Davis’ retaliation claim was therefore reinstated to permit him to try to adduce facts that would support his assertion “that the alleged retaliation would have deterred a reasonable inmate ....” Id at 354. Relying on Davis, this Court has subsequently dealt" }, { "docid": "22408090", "title": "", "text": "1983 claim for retaliation in violation of the First Amendment, a plaintiff must allege (1) that [he] engaged in a protected activity, (2) that the defendants responded with adverse action that would “chill a person of ordinary firmness” from continuing in the activity, and (3) that “the adverse action was motivated at least in part by the exercise of the protected activity.” L.L. Nelson Enters., Inc. v. Cnty. of St. Louis, Mo., 673 F.3d 799, 807-08 (8th Cir.2012) (quoting Revels, 382 F.3d at 876). “In brief, the plaintiff must show the official took the adverse action because the plaintiff engaged in the protected speech.” Revels, 382 F.3d at 876. Although “[t]he causal connection is generally a jury question, ... it can provide a basis for summary judgment when the question is so free from doubt as to justify taking it from the jury.” Id. (quotation and citation omitted). In the prison context, we have observed that prison officials are prohibited from “punish[ing] an inmate because he exercises his constitutional right of access to the courts.” Sisneros v. Nix, 95 F.3d 749, 751 (8th Cir.1996). But, “[i]n raising a retaliatory transfer claim, the prisoner ... facets] a substantial burden in attempting to prove that the actual motivating factor for his transfer was the impermissible retaliation.” Goff v. Burton, 7 F.3d 734, 737 (8th Cir.1993) (quotations and citations omitted). In such a case, the prisoner bears the burden of “proving] that but for an unconstitutional, retaliatory motive the transfer would have not occurred.” Id. at 738. “This is a ‘but for’ test dealing with motive, not causation.” Sisneros, 95 F.3d at 752. 1. Beaulieu and Yazzie’s Transfer to the Annex In August 2006, the MSOP began using the Annex to house patients. The Annex was a “non-participant unit,” which meant that if patients were not participating in a conventional sex-offender treatment, the MSOP would transfer them to the Annex. Beaulieu and Yazzie contend that their transfers to the Annex resulted from retaliation for filing a suit based on denial of their religious liberties. The undisputed facts show otherwise. Beaulieu and Yazzie filed" }, { "docid": "1421638", "title": "", "text": "439, 449-50 (8th Cir.2010). To prevail on a § 1983 claim for retaliation in violation of the First Amendment, Santiago must demonstrate (1) that he engaged in a protected activity; (2) that the government official took adverse action against him that would chill a person of ordinary firmness from continuing in the activity; and (3) that the adverse action was motivated at least in part by the exercise of the protected activity. Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir.2004). Santiago’s amended complaint alleges that Clubbs and Blair retaliated against him in violation of the First Amendment for filing and pursuing his excessive force grievance. Clubbs and Blair do not dispute that Santiago’s use of the prison grievance process satisfies the first prong under Revels. See Haynes v. Stephenson, 588 F.3d 1152, 1155-56 (8th Cir.2009) (“The filing of a prison grievance, like the filing of an inmate lawsuit, is protected First Amendment activity.” (internal quotation marks and citation omitted)). We address separately the remaining two prongs with respect to the allegations against Clubbs and Blair. i. Clubbs Santiago alleges that Clubbs subjected him to two adverse actions: first, he threatened Santiago’s life and, second, he falsified a conduct violation report. Looking first to the alleged death threats, Santiago has produced evidence that Clubbs made at least two statements implying that if Santiago did not drop his excessive force grievance against Blair, he would be found hanging in his cell and that his death would be made to look like a suicide. We have long held that “a threat of retaliation is sufficient injury if made in retaliation for an inmate’s use of prison grievance procedures” to sustain a claim of First Amendment retaliation. Burgess v. Moore, 39 F.3d 216, 218 (8th Cir.1994). This is true especially when the threats are ones of death or serious harm to an inmate’s safety. See, e.g., Burton v. Livingston, 791 F.2d 97, 100-01 (8th Cir.1986) (holding that allegations that a prison guard retaliated against a prisoner by terrorizing him with threats of death, if proved, would constitute a violation of the prisoner’s First" }, { "docid": "1421641", "title": "", "text": "using the prison grievance process). The “ordinary-firmness” test is an “objective one, not subjective.” Garcia, 348 F.3d at 729. In determining whether threats of death would chill a prisoner of ordinary firmness from using the prison grievance process, “[t]he question is not whether [Santiago himself] was deterred, though how [Santiago] acted might be evidence of what a reasonable [prisoner] would have done.” Id. Rather, the test is what a prisoner of ordinary firmness would have done in reaction to the death threats. Id. “Ultimately, this sort of question is usually best left to the judgment of a jury....” Id. In the circumstances before us, we conclude that a reasonable jury could find that threats of death, issued by a correctional officer tasked with guarding a prisoner’s segregated cell, would chill a prisoner of ordinary firmness from engaging in the prison grievance process. See Hill v. Lappin, 630 F.3d 468, 474 (6th Cir.2010) (“[T]hreats alone can constitute an adverse action if the threat is capable of deterring a person of ordinary firmness from engaging in protected conduct.”); Van Deelen v. Johnson, 497 F.3d 1151, 1157 (10th Cir.2007) (holding that the plaintiffs “allegations of physical and verbal intimidation, including a threat by a deputy sheriff to shoot him if he brought any more tax appeals, would surely suffice ... to chill a person of ordinary firmness from continuing to seek redress for (allegedly) unfair property tax assessments”). Further, there is sufficient evidence of a causal connection between Santiago’s use of the grievance process and Clubbs’s death threats to satisfy the third Revels prong. To satisfy the causal connection prong, “the plaintiff must show the official took the adverse action because the plaintiff engaged in the protected speech.” Revels, 382 F.3d at 876. The record indicates that Santiago’s excessive force grievance was officially denied on January 2, 2009, and that his appeal was denied on February 19, 2009. The conversation during which Clubbs threatened Santiago to drop his claim of excessive force or risk being found hanging in his cell occurred three days later, while Santiago was at a crossroads regarding whether to" } ]

[ { "docid": "22663190", "title": "", "text": "Pell v. Procunier, supra, at 822. The fact of confinement as well as the legitimate goals and policies of the penal institution limits these retained constitutional rights. Jones v. North Carolina Prisoners’ Labor Union, supra, at 125; Pell v. Procunier, supra, at 822. There must be a “mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.” Wolff v. McDonnell, supra, at 556. This principle applies equally to pretrial detainees and convicted prisoners. A detainee simply does not possess the full range of freedoms of an unincarcerated individual. Third, maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees. “[Cjentral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.” Pell v. Procunier, supra, at 823; see Jones v. North Carolina Prisoners’ Labor Union, supra, at 129; Procunier v. Martinez, 416 U. S. 396, 412 (1974). Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry. Accordingly, we have held that even when an institutional restriction infringes a specific constitutional guarantee, such as the First Amendment, the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security. Jones v. North Carolina Prisoners’ Labor Union, supra, at 129; Pell v. Procunier, supra, at 822, 826; Procunier v. Martinez, supra, at 412-414. Finally, as the Court of Appeals correctly acknowledged, the problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore 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. Jones v. North Carolina Prisoners’ Labor Union, supra, at 128; Procunier v. Martinez, supra, at 404-405; Cruz v. Beto, supra, at 321; see Meachum v. Fano, 427 U. S., at 228-229. “Such considerations" } ]

[ { "docid": "7559978", "title": "", "text": "Hewitt by stating that inmates shall have due process hearings and that inmates shall be released from segregation when certain circumstances have been met. In addition, as the district court correctly found, “hold-ticket” inmates such as Black are covered by these segregation procedures because the broad prison regulations do not exclude those on “hold ticket” status. This finding is buttressed by a December 3, 1986, memo to the warden from prison officials discussing Black’s grievance about his segregation and responding to the warden’s request that the procedure for administrative segregation of hold-ticket inmates be clarified. The memo indicates that hold-ticket inmates are covered by the general administrative segregation procedures: [Ejxisting policy and procedure ... already addresses any inmate assigned to the Special Management Unit which would include inmates on hold tickets from instate, out-of-state, and federal institutions ... [A]ll inmates are covered by the fact that all inmates assigned to the Special Management unit are afforded certain privileges regardless of their status____ Therefore, plaintiff Black clearly had a liberty interest created by the state prison regulations. 2. Process required Because Black had a liberty interest in remaining in the general prison population, prison officials had to afford him due process in order to deprive him of that right. Hewitt makes it clear, however, that the procedural due process required before one may be deprived of a liberty interest is governed by federal constitutional law and not state law, and that minimal process is required for segregation in the prison context because prison officials must be accorded “ ‘wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order....’” 459 U.S. at 472, 103 S.Ct. at 872 (quoting Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979)). Prison officials are “obligated to engage only in an informal, nonadversary review of the information supporting respondent’s administrative confinement, including whatever statement respondent wished to submit, within a reasonable time after confining him to administrative segregation.” Id. The Hewitt Court held that an inmate need only receive some" }, { "docid": "9347261", "title": "", "text": "an oral statement setting forth his version of the facts at a disciplinary hearing. The appellant in his brief wrote as follows allegedly relying on Wolff v. McDonnell, 418 U.S. 539, 564-66, 94 S.Ct. 2963, 2978-79, 41 L.Ed.2d 935 (1974) and Hewitt v. Helms, 459 U.S. 460, 476, 103 S.Ct. 864, 874, 74 L.Ed.2d 675 (1983): “Due process requires that an inmate accused of disciplinary violations be given the ... right to present his own version of events in written form.\" (Emphasis added). The plaintiff-appellant has misinterpreted Wolff and Hewitt, for neither of these cases held that the Due Process Clause mandates that a prisoner be allowed to present a written statement of “his own version of events” when he has been provided the opportunity to appear in person and testify orally, but has refused to do so. In Hewitt the Supreme Court stated that: “In determining what is ‘due process’ in the prison context, we are reminded that ‘one cannot automatically apply procedural rules designed for free citizens in an open society ... to the very different situation presented by a disciplinary proceeding in a state prison.’ Wolff v. McDonnell, 418 U.S. at 560, 94 S.Ct. at 2976. ‘Prison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.’ Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979). These considerations convince us that petitioners were obligated to engage only in an informal, nonadversary review of the information supporting respondent’s administrative confinement, including whatever statement respondent wished to submit, within a reasonable time after confining him to administrative segregation.” Hewitt, 459 U.S. at 472, 103 S.Ct. at 872. The language stating that prison officials were required to consider “whatever statement [the prisoner] wished to submit” refers to the content of the statement rather than its manner of presentation, and thus falls far short of directing that the authorities must consider the statement in whatever form the prisoner wished to submit it." }, { "docid": "10870518", "title": "", "text": "atypical and significant hardship within the meaning of Sandin and (2) that New York has by regulation granted inmates a protected liberty interest in remaining free from such confinement, I turn now to what process was due to McClary? It is well settled that prison administrators must be “accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment' are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). See Sandin, 515 U .S. at 482, 115 S.Ct. 2293. (Federal courts must “afford appropriate deference and flexibility to state officials trying to manage a volatile [prison] environment”). Accordingly, the decision to place an inmate in administrative segregation is “subject to limited procedural safeguards.” Brown v. Plant, 131 F.3d 163, 170 (D.C.Cir.1997). See Wolff v. McDonnell, 418 U.S. 539, 560, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (one cannot automatically apply procedural rules designed for free citizens to the “very different situation” of segregation proceedings in state prisons). While Sandin “modified the analysis under which federal courts determine whether state law confers a liberty interest on inmates,” Arce v. Walker, 139 F.3d 329, 334, the decision did not revamp the requirements of due process once a liberty interest has been implicated. Thus, pre-Sandin precedent controls as to what process is due an inmate who is confined to administrative segregation. In Hewitt v. Helms, 459 U.S. 460, 476, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) the Supreme Court defined the procedural due process to which an inmate is entitled when placed in administrative segregation. The Court held that “an informal, nonadversary review,” occurring within a “reasonable time following the inmate’s transfer,” id. at 476, 103 S.Ct. 864, where the inmate “receive[s] some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation” is sufficient due process under the circumstances. Id. at 460. In addition, prison officials must engage in “periodic review” of the" }, { "docid": "2136098", "title": "", "text": "to protect the prisoner’s safety, to protect others from the segregated prisoner, to break up potentially disruptive groups of prisoners, or simply to await later classification or transfer. See Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983). The stigma of wrongdoing does not necessarily attach to a prisoner placed in administrative segregation. Id. at 473, 103 S.Ct. at 872. Disciplinary detention, on the other hand, is punishment. Inmates in disciplinary detention are not allowed to have personal property and they are not allowed visits. Defendant Whitley’s Response to Request for Admissions, Exhibit A to plaintiff's Motion for Partial Summary Judgment (docket # 23), page 5, lines 7-17. Inmates in disciplinary detention are denied most privileges afforded other inmates. Id. at page 5, lines 21-23. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court held that due process of law requires that before a state prisoner may be denied a liberty interest he is entitled to (1) advance written notice of the charges against him, (2) an opportunity to call witnesses and present documentary evidence, provided that to do so will not jeopardize institutional safety or correctional goals, before a sufficiently impartial hearing board, and (3) a written statement by the fact finder of the evidence relied upon and the reasons for the disciplinary action taken. Later cases limited the rules of Wolff somewhat. Most importantly, in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the Supreme Court ruled that a lesser quantum of process is due a prisoner placed in administrative segregation pending disciplinary proceedings. Specifically, the Court said: [Petitioners were obligated to engage only in an informal, nonadversary review of the information supporting respondent’s administrative confinement, including whatever statement respondent wished to submit, within a reasonable time after confining him to administrative segregation. Hewitt, 459 U.S. at 472, 103 S.Ct. at 872. The other cases cited by defendants—Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir.1986); Little v. Norris, 787 F.2d 1241 (8th Cir.1986); and Nelson v. Bryan, 607 F.Supp." }, { "docid": "9347262", "title": "", "text": "the very different situation presented by a disciplinary proceeding in a state prison.’ Wolff v. McDonnell, 418 U.S. at 560, 94 S.Ct. at 2976. ‘Prison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.’ Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979). These considerations convince us that petitioners were obligated to engage only in an informal, nonadversary review of the information supporting respondent’s administrative confinement, including whatever statement respondent wished to submit, within a reasonable time after confining him to administrative segregation.” Hewitt, 459 U.S. at 472, 103 S.Ct. at 872. The language stating that prison officials were required to consider “whatever statement [the prisoner] wished to submit” refers to the content of the statement rather than its manner of presentation, and thus falls far short of directing that the authorities must consider the statement in whatever form the prisoner wished to submit it. The Court merely observed that the prisoner must be given an opportunity to present his statement of the facts, but did not mandate that the statement be in either oral or written form. The Court stated: “An inmate must merely receive ... an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Ordinarily a written statement by the inmate will accomplish this purpose, although prison administrators may find it more useful to permit oral presentations in cases where they believe a written statement would be ineffective. So long as this occurs, and the decision maker reviews the charges and then-available evidence against the prisoner, the Due Process Clause is satisfied.” Id. 459 U.S. at 476, 103 S.Ct. at 874 (emphasis added). Thus, under Hewitt the prerogative of determining whether the statement shall be received in oral or written form rests with prison authorities (providing the inmate has the capability of presenting either of them). Wheeler’s theory that Wolff mandates that his due process right entitles" }, { "docid": "7559979", "title": "", "text": "regulations. 2. Process required Because Black had a liberty interest in remaining in the general prison population, prison officials had to afford him due process in order to deprive him of that right. Hewitt makes it clear, however, that the procedural due process required before one may be deprived of a liberty interest is governed by federal constitutional law and not state law, and that minimal process is required for segregation in the prison context because prison officials must be accorded “ ‘wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order....’” 459 U.S. at 472, 103 S.Ct. at 872 (quoting Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979)). Prison officials are “obligated to engage only in an informal, nonadversary review of the information supporting respondent’s administrative confinement, including whatever statement respondent wished to submit, within a reasonable time after confining him to administrative segregation.” Id. The Hewitt Court held that an inmate need only receive some notice of the charges against him and an opportunity to present his views either in writing or in person to the prison official, and a review by the decision-maker of the charges and the available evidence. Id. at 476, 103 S.Ct. at 874. This process must occur within a “reasonable time” following an inmate’s transfer, judged from the view of the “insubstantial private interest” of the inmate and the “traditionally broad discretion” of prison officials. Id. at 476 n. 8, 103 S.Ct. at 874 n. 8. However, administrative segregation may not be used as “pretext for indefinite confinement of an inmate.” Id. at 477 n. 9, 103 S.Ct. at 874 n. 9. Therefore, “[p]rison officials must engage in some sort of periodic review of the confinement of such inmates. This review will not necessarily require that prison officials permit the submission of any additional evidence or statements.” Id. Thus, although Hewitt involved segregation of an inmate for his role in a prison riot, the case holds that regardless of the reason for the segregation, inmates" }, { "docid": "9841784", "title": "", "text": "the records, restore his lost time, and direct a review of his classification status. In addition to this, his appeal to the Circuit Court for Baltimore City was successful, and he obtained back pay plus Industrial and Special Project Time Credits for the time that he was unable to work in the Print Shop because of his confinement to segregation. In the process, he convinced the Circuit Court of Baltimore City to adopt a substantial evidence rule, which is not required by Hill in a constitutional challenge to prison disciplinary procedures. Thus, appellant was restored to his prior status, his record of conviction by the hearing officer was expunged, and he received back pay for the time he missed from work. He spent time in segregation, but Helms states: “[Administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration.” Helms, 459 U.S. at 468, 103 S.Ct. at 870. Helms also sets minimum due process standards for administrative confinement: “[Petitioners were obligated to engage only in an informal, nonadversary review of the information supporting respondent’s administrative confinement, including whatever statement respondent wishes to submit, within a reasonable time after confining him to administrative segregation.” Id., 459 U.S. at 472, 103 S.Ct. at 872. Later, it concluded: We think an informal, nonadversary evidentiary review is sufficient both for the decision that an inmate represents a security threat and the decision to confine an inmate to administrative segregation pending completion of an investigation into misconduct charges against him. An inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Ordinarily a written statement by the inmate will accomplish this purpose, although prison administrators may find it more useful to permit oral presentations in cases where they believe a written statement would be ineffective. So long as this occurs, and the decisionmaker reviews the charges and then-available evidence against the prisoner, the Due Process Clause is satisfied. This informal procedure permits a reasonably" }, { "docid": "5368282", "title": "", "text": "a liberty interest in remaining free from an administrative detention that is effected without compliance with these regulations. See Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). However, the only procedure that was due Kimberlin under the circumstances presented by this case was an informal, non-adversary review of the basis for his detentions within a reasonable time after they began. Hewitt, supra, 459 U.S. at 472, 103 S.Ct. at 871. As indicated above, Kimberlin was detained on three occasions. Two of the detentions (November 4-5; and December 22-23) were of very short duration. In both instances, he was released within twenty-four hours of being detained. The Court finds that under the Hewitt standard, Kimberlin was released with sufficient dispatch on both of these occasions, and that whatever review the prison officials provided conformed to Hewitt. As concerns the remaining detention, that of November 7, the complaint alleges that Kimberlin was released after seven days, when a local disciplinary hearing officer determined that the alleged violation did not carry the sanction of segregation from the general prison population. First Amended Complaint at 17. This decision by the officer was likewise sufficiently speedy for due process purposes. See Hewitt, supra, where the Supreme Court held that prison officials are to be accorded wide-ranging deference in the adoption of policies and practices that, in their judgment, are needed to preserve prison order and discipline. The Court went on to say that such officials are obligated only to engage in an informal review of the information supporting the inmate’s administrative confinement “within a reasonable time after confining him to administrative segregation.” 459 U.S. at 472, 103 S.Ct. at 872. It so happens that the inmate in Hewitt did not receive even an informal review until five days after his administrative detention, and that he remained in that detention for a considerable period thereafter. Nevertheless, the Supreme Court approved the actions of the officials. Under the standards established by the Supreme Court, Kimberlin was not deprived of procedural due process. For the reasons stated, the Fifth Amendment claims will be" }, { "docid": "22901554", "title": "", "text": "New York regulations require appointment of a Review Officer to review misbehavior reports and the status of inmates in keeplock. N.Y.Comp.Code R. & Regs. tit. 7, § 251-2.2 (1992). In this case, unlike Gittens, Shamsid-Deen was given an opportunity to write to a responsible official, Cunningham, who was the Acting Deputy Superintendent for Security. Indeed, Shamsid-Deen concedes that he submitted a written complaint to Cunningham asserting the impropriety of his administrative confinement, but he contends that he did not receive a response from Cunningham. Although we recognize that a response would have been thoughtful, due process does not require such a response. As the Supreme Court held in Hewitt, the process that is due to an inmate confined to keeplock is “an informal, non-adversary review of the information supporting [the inmate’s] administrative confinement, including whatever statement [the inmate] wished to submit, within a reasonable time after confining him to administrative segregation.” 459 U.S. at 472, 103 S.Ct. at 872 (emphasis added). In our view, mandating that prison officials issue a response under these circumstances would be tantamount to inferring that, where a response has not been issued, the responsible officials have not considered the complaint. In keeping with our traditional and well founded deference to prison officials in their administration of the prison, we refuse to draw such an inference in the absence of any other evidence that the confined inmate’s complaint has been ignored. Accordingly, we conclude that Shamsid-Deen’s opportunity to write to Cunningham afforded him a constitutionally adequate opportunity to be heard regarding his administrative confinement, and we therefore need not address the magistrate judge’s additional conclusion that the disciplinary hearing itself constituted an adequate opportunity to be heard. We next consider the due process requirement that the opportunity to be heard occur within a reasonable time after the imposition of keeplock. Hewitt, 459 U.S. at 472, 103 S.Ct. at 871; Gittens, 891 F.2d at 41. Here, Shamsid-Deen himself acknowledges that he wrote to Cunningham on August 11, the day on which his administrative confinement commenced. This opportunity came within the reasonable time requirement. Moreover, we are not" }, { "docid": "22673315", "title": "", "text": "has used language of an unmistakably mandatory character, requiring that certain procedures “shall,” “will,” or “must” be employed, see n. 6, supra, and that administrative segregation will not occur absent specified substantive predicates — viz., \"the need for control,” or “the threat of a serious disturbance.” Petitioners argue, with considerable force, that these terms must be read in light of the fact that the decision whether to confine an inmate to administrative segregation is largely predictive, and therefore that it is not likely that the State meant to create binding requirements. But on balance we are persuaded that the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest. That being the case, we must then decide whether the process afforded respondent satisfied the minimum requirements of the Due Process Clause. We think that it did. The requirements imposed by the Clause are, of course, flexible and variable dependent upon the particular situation being examined. E. g., Greenholtz v. Nebraska Penal Inmates, 442 U. S., at 12; Morrissey v. Brewer, 408 U. S. 471, 481 (1972). In determining what is “due process” in the prison context, we are reminded that “one cannot automatically apply procedural rules designed for free citizens in an open society ... to the very different situation presented by a disciplinary proceeding in a state prison.” Wolff v. McDonnell, 418 U. S., at 560. “Prison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U. S. 520, 547 (1979). These considerations convince us that petitioners were obligated to engage only in an informal, non-adversary review of the information supporting respondent’s administrative confinement, including whatever statement respondent wished to submit, within a reasonable time after confining him to administrative segregation. . Under Mathews v. Eldridge, 424 U. S. 319, 335 (1976), we: consider the private interests at stake in a governmental decision, the" }, { "docid": "3712770", "title": "", "text": "overruled and that in all cases the burden should be on the alien to show prejudice before being entitled to a remand. The dissent insisted that Montilla’s per se rule inevitably would lead to remands which were merely “a circuitous and wasteful route to the same result” (i.e. a final order of deportation). Id. at 520. In such cases, the remand would have served no purpose other than “to squander judicial and executive resources.” Id. at 520-21. In this case, the regulations at issue clearly are designed to protect an inmate’s fundamental due process rights. However, because of the exigencies of the prison disciplinary context, this court is not persuaded that a disciplinary sanction must automatically be vacated and remanded because a particular regulation was violated. Rather, at least in situations where the minimal requirements of due process have been met, an inmate must show prejudice to the rights sought to be protected by the regulation claimed to be violated. Several concerns persuade the court that this approach best balances the interests and needs of the correctional institutions and the rights of inmates. First, the Supreme Court has noted the special concerns faced by prison officials: In determining what is “due process” in the prison context, we are reminded that “one cannot automatically apply procedural rules designed for free citizens in an open society ... to the very different situation presented by a disciplinary proceeding in a state prison.” Wolff v. McDonnell, 418 U.S. at 560 [94 S.Ct. at 2976-77]. “Prison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983) (emphasis added). Recognizing these concerns, this court is reluctant to overtax and/or hamstring prison officials’ execution of disciplinary policies and procedures by mandating an automatic remand for technical non-compliance with a regulation, absent some showing of" }, { "docid": "9841785", "title": "", "text": "informal, nonadversary review of the information supporting respondent’s administrative confinement, including whatever statement respondent wishes to submit, within a reasonable time after confining him to administrative segregation.” Id., 459 U.S. at 472, 103 S.Ct. at 872. Later, it concluded: We think an informal, nonadversary evidentiary review is sufficient both for the decision that an inmate represents a security threat and the decision to confine an inmate to administrative segregation pending completion of an investigation into misconduct charges against him. An inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Ordinarily a written statement by the inmate will accomplish this purpose, although prison administrators may find it more useful to permit oral presentations in cases where they believe a written statement would be ineffective. So long as this occurs, and the decisionmaker reviews the charges and then-available evidence against the prisoner, the Due Process Clause is satisfied. This informal procedure permits a reasonably accurate assessment of probable cause to believe that misconduct occurred, and the “value [of additional ‘formalities and safeguards’] would be too slight to justify holding, as a matter of constitutional principle[,] that they must be adopted, Gerstein v. Pugh, [420 U.S. 103, 122, 95 S.Ct. 854, 867, 43 L.Ed.2d 54] (1975) ].” Id., 459 U.S. at 476, 103 S.Ct. at 874. Baker’s classification status was reviewed every thirty days and on each occasion the Classification Team found: “Ap proved for placement on Administrative Segregation on 12/11/85. The Classification Team recommended that Baker be assigned to that status based on escape history, esp infraction of 8/31/85.” There was a “modicum of evidence” to support the belief that Baker was an escape risk. We are satisfied that there was evidence sufficient under Hill to support the actions of the defendants and that the process provided complied with the requirements for administrative segregation established in Hewitt v. Helms. There was no dispute as to a material fact and the district court was correct in entering summary judgment for" }, { "docid": "9793741", "title": "", "text": "to be accorded some inferi- or status. In our view, the Morris Rules, as an agreement voluntarily entered into between the State and a class of inmates, is no less capable of conferring a protectible liberty interest on a prison inmate than a piece of paper signed by the inmate and a DOC official. C Having concluded that the Emergency Provisions of the Morris Rules endowed inmates at the ACI, Rodi included, with a liberty interest in remaining in the general prison population, we turn next to the question of what process was due. In Hewitt, the Court held that, at a minimum, an inmate placed in administrative segregation should be provided with “an informal, nonadversary review of the information supporting [the inmate’s] administrative confinement, including whatever statement [the inmate may wish] to submit, within a reasonable time after confining him to administrative segregation.” 459 U.S. at 477, 103 S.Ct. at 874. The Court stressed that the process due in such a situation was not elaborate: An inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Ordinarily a written statement by the inmate will accomplish this purpose, although prison administrators may find it more useful to permit oral presentations in cases where they believe a written statement would be ineffective. So long as this occurs, and the decisionmaker reviews the charges and then-available evidence against the prisoner, the Due Process Clause is satisfied. Id. at 476, 103 S.Ct. at 874 (footnote omitted); see also Parenti, 727 F.2d at 25. While the Hewitt Court regarded as constitutionally sound procedures whereby an inmate received notice of the charges against him within one day of his alleged misconduct and a hearing within five days of his transfer, it eschewed any attempt to craft an inflexible time line. See Hewitt, 459 U.S. at 477, 103 S.Ct. at 874. The Court announced, instead, the more general standard that the opportunity to be heard “must occur within a reasonable time following an inmate’s" }, { "docid": "2136099", "title": "", "text": "the charges against him, (2) an opportunity to call witnesses and present documentary evidence, provided that to do so will not jeopardize institutional safety or correctional goals, before a sufficiently impartial hearing board, and (3) a written statement by the fact finder of the evidence relied upon and the reasons for the disciplinary action taken. Later cases limited the rules of Wolff somewhat. Most importantly, in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the Supreme Court ruled that a lesser quantum of process is due a prisoner placed in administrative segregation pending disciplinary proceedings. Specifically, the Court said: [Petitioners were obligated to engage only in an informal, nonadversary review of the information supporting respondent’s administrative confinement, including whatever statement respondent wished to submit, within a reasonable time after confining him to administrative segregation. Hewitt, 459 U.S. at 472, 103 S.Ct. at 872. The other cases cited by defendants—Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir.1986); Little v. Norris, 787 F.2d 1241 (8th Cir.1986); and Nelson v. Bryan, 607 F.Supp. 959 (D.Nev.1985)—are all administrative segregation cases applying the rules of Hewitt. Those cases, as well as Hewitt, are inapplicable to the issue in this case, which is the process due prior to disciplinary detention of an inmate. Defendants argue that the rules of Hewitt should apply to this case because there was an important institutional need to impose immediate disciplinary detention to maintain order within NSP. Defendants do not specify the need. Defendant Whitley, the warden of NSP, said in his affidavit: Based upon my training and experience in some instances immediate disciplinary detention is necessary in the maintenance and order of the institution as well as to provide proper prison security. Immediate detention is necessary to maintain security and control over the inmate. Without immediate action when inmates refuse orders, prison control over inmates is jeopardized. In the specific instances which are the basis of this lawsuit involving inmate Taylor disciplinary detention was necessary in order to continue with the orderly and secure transfer of prisoners from Unit 5, administrative segregation, to Unit 4," }, { "docid": "9347260", "title": "", "text": "Whether the district court abused its discretion in admitting Exhibit 11 in evidence. III. DUE PROCESS The district court stated that “[rjeading [Ill.Admin.Reg.] 804(II)(H)(3) with 804(II)(H)(7), an inmate has an unmistakable right to appear before the committee, address the committee, and contest the charges.” Order at 5 (Jan. 29, 1990). We are of the opinion that since the district court found that inmates are entitled to procedural safeguards under Ill.Rev.Stat. ch. 38, § 1003-8-7 (1978) and Ill.Admin.Reg. 804(11) (1981), the court found that the statute and administrative regulation created a liberty interest, for there can be no right to due process without a constitutionally protected interest at stake. Thus, it is surprising that Wheeler argues both in his opening brief and his reply brief that he has “a well-defined liberty interest at stake in the disciplinary proceedings against him.” After the district judge found that Wheeler possessed a protected liberty interest, the only due process question at issue is whether the Due Process Clause itself entitles an inmate to present a written statement rather than an oral statement setting forth his version of the facts at a disciplinary hearing. The appellant in his brief wrote as follows allegedly relying on Wolff v. McDonnell, 418 U.S. 539, 564-66, 94 S.Ct. 2963, 2978-79, 41 L.Ed.2d 935 (1974) and Hewitt v. Helms, 459 U.S. 460, 476, 103 S.Ct. 864, 874, 74 L.Ed.2d 675 (1983): “Due process requires that an inmate accused of disciplinary violations be given the ... right to present his own version of events in written form.\" (Emphasis added). The plaintiff-appellant has misinterpreted Wolff and Hewitt, for neither of these cases held that the Due Process Clause mandates that a prisoner be allowed to present a written statement of “his own version of events” when he has been provided the opportunity to appear in person and testify orally, but has refused to do so. In Hewitt the Supreme Court stated that: “In determining what is ‘due process’ in the prison context, we are reminded that ‘one cannot automatically apply procedural rules designed for free citizens in an open society ... to" }, { "docid": "7622035", "title": "", "text": "of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903. The requirements of due process are thus necessarily “flexible and variable dependent upon the particular situation being examined.” Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668 (1979). This is especially true in the prison context where the reach of the due process clause is highly restricted. As the Supreme Court has stated, “one cannot automatically apply procedural rules designed for free citizens in an open society ... to the very different situation presented by a disciplinary proceeding in a state prison.” Wolff v. McDonnell, 418 U.S. 539, 560, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974). And finally, it must be remembered that “[prison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). A. With these considerations in mind, the Supreme Court, in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), addressed the question of what process was due a prison inmate at a hearing held to determine whether he should be subjected to administrative segregation. Following the three part analysis articulated in Mathews v. Eldridge, the Court concluded there was no due process violation. It reasoned that the prisoner’s “private interest is not one of great consequence. He was merely transferred from one extremely restricted environment to an even more confined situation.” Hewitt v. Helms, 459 U.S. at 472, 103 S.Ct. at 872. By contrast the Court noted that the “governmental interests are of great importance. The safety of the institution’s guards and inmates" }, { "docid": "22945428", "title": "", "text": "by “an informal, nonadversary review of the information supporting [the inmate’s] administrative confinement, including whatever statement [the inmate] wishe[s] to submit, within a reasonable time after confining him to administrative segregation.” Id. at 472, 103 S.Ct. at 872. What is a “reasonable time” must “tak[e] into account the relatively insubstantial private interest at stake and the traditionally broad discretion of prison officials.” Id. at 476 n. 8, 103 S.Ct. at 874 n. 8. In the instant case, Rodriguez was given notice at the time of his administrative confinement that it was due to the report of his mother passing an unknown object through the prison fence to an unknown inmate. Lt. Alcock contends that his questioning of Rodriguez on each day of plaintiffs confinement satisfied the requirement that Rodriguez have an opportunity to be heard on whether segregation was appropriate. We agree with the district court that a question exists as to whether Lt. Alcock’s questioning of Rodriguez allowed plaintiff an opportunity to be heard, and, were this issue determinative, we would affirm the denial of summary judgment. But due process is violated only when the opportunity to be heard is not provided within a reasonable time of the commencement of administrative segregation. Hence, if it would have been reasonable to provide that opportunity after the third day of confinement, the point at which Rodriguez was released, the dispute as to whether he was heard before that time is not material. Moreover, if it was objectively reasonable for Lt. Alcock to believe that such was the case, qualified immunity is warranted. In Hewitt, the Supreme Court held a five-day period between placement in administrative segregation and an opportunity to be heard was reasonable. It noted prison security is a matter best left to the discretion of prison officials, that in the prison context rumor or reputation is enough to create a security risk until it is disproved, and that the progress of the investigation will play a role in prison administrators’ decisionmak-ing. See 459 U.S. at 474, 477 n. 9, 103 S.Ct. at 872-73, 874 n. 9. None of our" }, { "docid": "22673316", "title": "", "text": "Penal Inmates, 442 U. S., at 12; Morrissey v. Brewer, 408 U. S. 471, 481 (1972). In determining what is “due process” in the prison context, we are reminded that “one cannot automatically apply procedural rules designed for free citizens in an open society ... to the very different situation presented by a disciplinary proceeding in a state prison.” Wolff v. McDonnell, 418 U. S., at 560. “Prison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U. S. 520, 547 (1979). These considerations convince us that petitioners were obligated to engage only in an informal, non-adversary review of the information supporting respondent’s administrative confinement, including whatever statement respondent wished to submit, within a reasonable time after confining him to administrative segregation. . Under Mathews v. Eldridge, 424 U. S. 319, 335 (1976), we: consider the private interests at stake in a governmental decision, the governmental interests involved, and the value of procedural requirements in determining what process is due under the Fourteenth Amendment. Respondent’s private interest is not one of great consequence. He was merely transferred from one extremely restricted environment to an even more confined situation. Unlike disciplinary confinement the stigma of wrongdoing or misconduct does not attach to administrative segregation under Pennsylvania’s prison regulations. Finally, there is no indication that administrative segregation will have any significant effect on parole opportunities. Petitioners had two closely related reasons for confining Helms to administrative segregation prior to conducting a hearing on the disciplinary charges against him. First, they concluded that if housed in the general population, Helms would pose a threat to the safety of other inmates and prison officials and to the security of the institution. Second, the prison officials believed that it was wiser to separate respondent from the general population until completion of state and institutional investigations of his role in the December 3 riot and the hearing on the charges against him. Plainly, these governmental interests" }, { "docid": "3712771", "title": "", "text": "the correctional institutions and the rights of inmates. First, the Supreme Court has noted the special concerns faced by prison officials: In determining what is “due process” in the prison context, we are reminded that “one cannot automatically apply procedural rules designed for free citizens in an open society ... to the very different situation presented by a disciplinary proceeding in a state prison.” Wolff v. McDonnell, 418 U.S. at 560 [94 S.Ct. at 2976-77]. “Prison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983) (emphasis added). Recognizing these concerns, this court is reluctant to overtax and/or hamstring prison officials’ execution of disciplinary policies and procedures by mandating an automatic remand for technical non-compliance with a regulation, absent some showing of prejudice to the inmate. Second, this court is persuaded that the foregoing rule creates a proper system of incentives. On the one hand, prison officials are not given free rein to ignore applicable regulations. To the extent that the regulations in fact actually track the requirements of due process, failure to comply with them is subject to reversal and, to the extent that the requirements are based on a “clearly established” constitutional right, may even subject the non-complying officials to an action for damages. Young, 926 F.2d at 1404 n. 4. To the extent that regulations exceed what due process requires, a prisoner still is entitled to reversal of a sanction to the extent that he can show actual prejudice to the interests the regulation is designed to protect. Together, these factors provide a substantial incentive for officials to comply with applicable regulations. At the same time, the rule does not discourage the promulgation of regulations and other guidelines and procedures to guide the discretion of prison officials in the conduct of prison disciplinary proceedings." }, { "docid": "7622036", "title": "", "text": "administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). A. With these considerations in mind, the Supreme Court, in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), addressed the question of what process was due a prison inmate at a hearing held to determine whether he should be subjected to administrative segregation. Following the three part analysis articulated in Mathews v. Eldridge, the Court concluded there was no due process violation. It reasoned that the prisoner’s “private interest is not one of great consequence. He was merely transferred from one extremely restricted environment to an even more confined situation.” Hewitt v. Helms, 459 U.S. at 472, 103 S.Ct. at 872. By contrast the Court noted that the “governmental interests are of great importance. The safety of the institution’s guards and inmates is perhaps the most fundamental responsibility of the prison administration.” Id. Finally, it found that the administrative segregation decision would not be materially assisted by a detailed adversary proceeding as advanced by the prisoner. Id. Therefore, the Court held that the prison authorities “were obligated to engage only in an informal, nonadversary review of the information supporting [the prisoner’s] administrative confinement ... within a reasonable time after confining him....” Id. B. Our concern in the present case is not with the process that is due for the initial segregated confinement decision, but rather with what process is due during the periodic reviews that determine whether the confinement should be continued. The Hewitt decision is instructive here as well. The Court in Hemtt cautioned that “administrative segregation may not be used as a pretext for indefinite confinement of an inmate. Prison officials must engage in some sort of periodic review of the confinement of such inmates.” 459 U.S. at 477 n. 9, 103 S.Ct. at 874 n. 9. However, and highly relevant to the disposition of" } ]

[ { "docid": "23151385", "title": "", "text": "Order Dove contends that the district court erred in failing to grant a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. That rule states in pertinent part: Upon motion by ... the person from whom discovery is sought, and for good cause shown, the court in which the ac tion is pending ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed.R.Civ.P. 26(c). Dove argues that he has shown good cause for an order restricting the use of any discovery to the instant action and that use of the discovery in the UK litigation would be oppressive. The district court concluded that Dove had not shown sufficient good cause for a protective order. “The grant and nature of protection is singularly within the discretion of the district court and may be reversed only on a clear showing of abuse of discretion.” Galella v. Onassis, 487 F.2d 986, 997 (2d Cir.1973) (citation omitted); see In re American Tobacco Co., 880 F.2d 1520, 1530 (2d Cir.1989). This standard applies where the requested order has been denied as well as when it has been granted. See Penthouse Int'l, Ltd. v. Playboy Enterprises, 663 F.2d 371, 391 (2d Cir.1981). “Where ... the [discovery is] relevant, the burden is upon the party seeking non-disclosure or a protective order to show good cause.” Id. (citations omitted). Dove does not argue that the discovery Atlantic seeks is not relevant to Atlantic’s affirmative defenses. Therefore, he must show that the district court abused its discretion by finding that he had not demonstrated sufficient good cause to justify a protective order. Some courts have held that unequal discovery rights in related litigation may justify a protective order or other device designed to prevent abuse of the liberal discovery rules available in federal court. See, e.g., Snap Lite Corp. v. Stewart Warner Corp., 40 F.Supp. 776, 776 (S.D.N.Y.1941) (federal action initiated to obtain discovery for use in state court); Campbell v. Eastland, 307 F.2d 478, 480, 483 (5th Cir.1962) (federal civil" } ]

[ { "docid": "1395681", "title": "", "text": "17 (1984). Rule 26(c) of the Federal Rules of Civil Procedure states, in pertinent part, that [ujpon motion by a party . accompanied by a certification that the movant has in good faith conferred ... with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... (4) that certain matters not be inquired into, or that the scope of the disclosure of discovery be limited to certain matters.” Fed R. Civ. P. 26(c). Still, a court is given broad discretion regarding whether to issue a protective order. Dove v. Atl Capital Corp., 963 F.2d 15, 19 (2d Cir.1992) (grant and nature of protection is singularly within the district court’s discretion). That said, a court may issue a protective order only after the moving party demonstrates good cause. In re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 145 (2d Cir.1987). To establish good cause under Rule 26(c), courts require a “particular and specific demonstration of fact, as distinguished from stereotyped and eonclusory statements.” Havens v. Metro. Life Ins. Co. (In re Akron Beacon Journal), No. 94 Civ. 1402,1995 WL 234710, at *10,1995 U.S. Dist. LEXIS 5183, at *10 (S.D.N.Y. April 20,1995) (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir.1986)). Furthermore, “good cause is not necessarily established solely by showing that discovery may involve inconvenience and expense.” Waltzer v. Conner, et al, No. 83 Civ. 8806, 1985 WL 2522, at *1, 1985 U.S. Dist. LEXIS 16049, at *2 (S.D.N.Y. Sept. 12, 1985). A burden or expense is not “undue” simply because it is burdensome or expensive. In deciding whether to issue the order, a court should compare the hardship to the party against whom discovery is sought with the probative value of the information to the other party. Solarex Corp. v. Arco Solar, Inc., 121 F.R.D. 163, 169 (E.D.N.Y.1988), aff'd 870 F.2d 642 (Fed.Cir.1989). As a" }, { "docid": "4477533", "title": "", "text": "17). BACKGROUND Plaintiff filed this action on April 27, 1990, to obtain the release of records allegedly withheld pursuant to a request under the FOIA made by the plaintiff to the Boston District of the I.R.S. on October 2, 1989 for records relating to the plaintiff. (Docket Entry # 17, p. 3 and # 1). A conference was held by Judge Nelson on July 16, 1990, at which time the court ordered the defendant to produce a Vaughn index describing the documents withheld by the I.R.S. The court also ordered a stay of discovery pending the submission of the Vaughn index with the exception of the deposition in question and a Rule 30(b)(6) deposition of the defendant. (Docket Entry # 17, p. 6). Counsel for the defendant then refused to allow the deposition of Mr. Owens to proceed and pursued the motion in question. DISCUSSION It is clear that a court that issues a subpoena has the inherent power to vacate it. United States v. International Business Machines Corp., 406 F.Supp. 175 (S.D.N.Y.1975). “The basis for excusal from the duty to appear and give oral testimony is severely restricted, however, and decisions quashing subpoenas ad testificandum are accordingly rare.” 5A J. Moore & J. Lucas, Moore’s Federal Practice ¶ 45.05[3] (1990); see Horizons Titanium Corp. v. Norton Co., 290 F.2d 421 (1st Cir.1961) (until witness appears there is no guide to his testimony). Defendant’s request for a protective order is governed by Fed.R.Civ.P. 26(c) which provides in pertinent part: Upon motion by a party ... and for good cause shown, the court ... may make any order which justice requires to protect a party ... from annoyance, embarrassment, oppression, or undue burden or expense, including (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions ... (4) that certain matters not be inquired into. Id. The party seeking a protective order has the burden of showing the existence of good cause for the issuance of a protective order. See Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 778 (1st" }, { "docid": "23516028", "title": "", "text": "good candidate for a thorough and conscientious assessment of the various considerations for and against confidentiality. Rule 26(c) empowers the court to issue protective orders “which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Legitimate interests in privacy are among the proper subjects of this provision’s protection. “It is appropriate for courts to order confidentiality to prevent the infliction of unnecessary or serious pain on parties who the court reasonably finds are entitled to such protection.” Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir.1994). Such an order is only appropriate, however, where the party seeking the order “show[s] good cause by demonstrating a particular need for protection.” Id. To maké a showing of good cause, the party seeking confidentiality has the burden of showing the injury “with specificity.” Publisher Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir.1984). The injury shown, however, need be no more than “embarrassment”; thus, a party need not establish a monetizable injury. See Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir.1986). Further, in appropriate circumstances, a district court is em- ■ powered to issue umbrella protective orders protecting classes of documents after a threshold showing by the party seeking protection. See id. at 1122. Rule 26(c) further provides that such orders may be crafted to create any of a broad range of requirements, including (1) that the disclosure or discovery not be had; (2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters; [and] (5) that discovery be conducted with no one present except persons designated by the court.... Thus, Rule 26(c) provides district courts with the power to formulate a detailed solution that reflects the concerns of particular individual disputes. To that" }, { "docid": "6082966", "title": "", "text": "sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). Although plaintiff lodged several objections as to relevance in her discovery responses, she has abandoned this position in her memoranda. See Plaintiffs Mot. for Protective Order at 2. Thus, in opposition to defendants’ motion to compel, it is plaintiffs burden to prove the applicability of her claims of privilege. Moreover, both plaintiff and the Department of the Navy seek a protective order under Fed.R.Civ.P. 26(c). Under Rule 26(c), “for good cause shown, the court in which the action is pending ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense____The provisions of 37(a)(4) apply to the award of expenses incurred in relation to the motion.” Fed.R.Civ.P. 26(c). To the extent plaintiff and non-party Department of the Navy seek a protective order, they bear the burden of making the showing of good cause contemplated by the rule. Rolscreen Co. v. Pella Products, 145 F.R.D. 92, 95-96 (S.D.Iowa 1992); CBS, Inc. v. Ahern, 102 F.R.D. 820, 822 (S.D.N.Y.1984). The required showing of good cause under Rule 26(c) must be sufficient to overcome defendants’ legitimate and important interest in trial preparation. See Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir.1985). For the purposes of analysis, the court will first address the issues raised as to plaintiffs responses to defendants’ interrogatories served upon only her. These issues generally concern whether plaintiff answered the inquiries fully and whether certain objections are valid. The court will then turn to the protective order issues pertaining to defendants’ document requests served upon plaintiff and non-party Department of the Navy. Plaintiff and the Department of the Navy make the same arguments in opposition to defendants’ motions to compel and in support of their own motions for protective orders. A. Interrogatories 1. Interrogatory Number 1 This interrogatory asks plaintiff to “identify each person whom you expect to call as an expert witness at trial and, as to each" }, { "docid": "5113287", "title": "", "text": "good faith, thus, making them relevant and within the scope of discovery. II. Analysis Rule 26(c), Fed.R.Civ.P., pursuant to which Plaintiffs seek relief, provides, in relevant part, as follows: Upon motion by a party or by the person from whom discovery is sought, ... and for good cause shown, the court in which the action is pending ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.... As the party seeking a protective order, Plaintiffs must provide the Court with “good cause” for the protection sought. Fed.R.Civ.P. 26(c). “Good cause” has been defined as a “sound basis or legitimate need to take judicial action.” In re Alexander Grant & Co. Litigation, 820 F.2d 352, 356 (11th Cir.1987). The party requesting a protective order must make a specific demonstration of facts in support of the request. A court must then balance the competing factors involved in determining whether good cause has been shown. See Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir.1985). Plaintiffs’ claimed “good cause” for a protective order consists of its contention that the information sought in the specific Notice of Deposition, as well as the request for documents, and other similar discovery on issues of liability and causation, is not relevant to the matters before the Court in this proceeding. As to the issue of relevancy of information in discovery, Rule 26(b) of the Federal Rules of Civil Procedure defines the scope of discovery as including “any matter, not privileged, that is relevant to the claim or defense of any party” or, upon a showing of good cause, “any matter relevant to the subject matter involved.... ” Even after the 2000 amendments to Rule 26, it is well established that courts must employ a liberal discovery standard in keeping with the spirit and purpose of the discovery rules. Graham v. Casey’s Gen. Stores, 206 F.R.D. 251, 253 (S.D.Ind.2002); White v. Kenneth Warren & Son, Ltd., 203 F.R.D. 364, 366 (N.D.Ill.2001). Accordingly, discovery should ordinarily be allowed under the concept of relevancy" }, { "docid": "8845929", "title": "", "text": "to Davis’ motion for protective order due to the fact that the reply filed by Davis included a declaration by Davis not included in the original motion for protective order. Through their surreply, plaintiffs seek an opportunity to refute the statements made by Davis in that declaration. If the court were to deny plaintiffs leave to file the surreply, plaintiffs would be unable to contest matters presented to the court for the first time in the form of Davis’ declaration. Therefore, it is the conclusion of this court that plaintiffs have demonstrated good cause to warrant the granting of their motion and their surreply shall be filed. B. Davis’ Motion for Protective Order The court has noted on several occasions that generally speaking, “[a] party is entitled to depose a witness on all relevant issues to which the witness has knowledge.” CBS, Inc. v. Ahern, 102 F.R.D. 820, 822 (S.D.N.Y.1984). Davis’ efforts to quash her deposition is premised on Federal Rule of Civil Procedure 26(c) which provides: Upon motion by a party or the person from whom discovery is sought ... and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed.R.Civ.P. 26(c). As the party seeking the protective order, Davis bears the burden of making the showing of good cause contemplated by the rule. Rolscreen Co. v. Pella Products of St. Louis, Inc., 145 F.R.D. 92, 95-96 (S.D.Iowa 1992); Ahern, 102 F.R.D. at 822. In this regard, Davis must make a specific demonstration of facts to support her request for the protective order quashing the deposition. Specifically, good cause exists under Rule 26(e) when justice requires the protection of a party or a person from any annoyance, embarrassment, oppression, or undue burden or expense. The party requesting a protective order must make a specific demonstration of facts in support of the request as opposed" }, { "docid": "23589630", "title": "", "text": "failed to satisfy its burden in moving to quash the subpoena. (Plaintiff’s Memo at 13-15.) Merrill Lynch disputes each of plaintiffs’ three assertions. (Memorandum of Law in Further Support of Motion of Nonparty Witness Merrill Lynch to Quash Subpoena, Concord Boat Corp. v. Brunswick Corp., No. M. 8-85 (“Merrill’s Memo in Support”), at 2-7 (Oct. 14, 1996).) This Court briefly will review the legal principles underlying the parties’ dispute before moving on to the three specific issues raised in the parties’ respective papers. I. Rule 26 and Rule 45 Rule 26 of the Federal Rules of Civil Procedure sets forth the “General Provisions Governing Discovery” for civil suits in the' federal courts. It authorizes parties to obtain “discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action,” and all information “reasonably calculated to lead to discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). Rule 26(c), however, curtails this power by providing that [u]pon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the disclosure or discovery not be had; (2) that the disclosure or discovery maybe had only on specified terms and conditions. Fed.R.Civ.P. 26(c). Rule 45 provides a corresponding level of protection for persons subject to subpoena. 9A Wright & Miller, Federal Practice and Procedure: Civil 2d § 2449, at p. 75 (1995). Rule 45(c), entitled “Protection for Persons Subject to Subpoenas,” in relevant part states: (c)(2)(B) ... a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney" }, { "docid": "16427790", "title": "", "text": "Court should order Defendants to produce Higgins for a deposition and impose sanctions against Defendants. A. Motion to Disqualify As the Court views it, Defendant’s motion presents two distinct issues: (1) whether Piper’s ex parte contact with Salliotte violated MRPC 4.2; and (2) whether Salliotte disclosed information protected by the attorney-client privilege. The Court will discuss each issue separately. As a preliminary matter, however, the Court must determine its authority to grant the relief requested by Defendant. Defendant cites Rules 26(c) and 37(a)(4) of the Federal Rules of Civil Procedure and Local Rule 83.1(k)(i) as the bases for its motion. Rule 26(c) provides that “for good cause shown” by the party from whom discovery is sought, a court may issue an order prohibiting or limiting discovery where “justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Rule 37(a)(4) authorizes a court to award expenses or impose sanctions against a party who fails to make Rule 26(a) disclosures or to provide discovery allowed under the Federal Rules of Civil Procedure. Local Rule 83.1(k)(i) provides that a judge of this district may impose discipline, except suspension or disbarment from this Court, on any attorney who violates the Rules of Professional Conduct as adopted by the Michigan Supreme Court. Rule 37(a)(4) is not a proper basis for Defendant’s motion because Defendant is not seeking to compel discovery or mandatory disclosures. In addition, whether Rule 26(c) applies in this situation, is questionable. See Amarin Plastics, Inc. v. Md. Cup Corp., 116 F.R.D. 36, 38 (D.Mass.1987) (finding that Rule 26(c) provided no authority to issue the requested protective order because “[ijnformal witness interviews are not encompassed by Rule 26”); G-I Holdings, Inc. v. Baron & Budd, 199 F.R.D. 529, 533 (S.D.N.Y.2001) (relying on Rule 26(c) as a basis for entering a protective order re garding ex parte interviews). Finally, Local Rule 83.1(k)(i) provides a basis for some of the relief requested against Piper if the Court determines that he violated the Rules of Professional Conduct, but it does not authorize many of the specific limitations which Defendant" }, { "docid": "17913385", "title": "", "text": "This Report and Recommendation addresses the issues raised in these motions. II. DISCUSSION A. Legal Standards 1. Motion for a Protective Order Upon motion for a protective order by a party or by the person from whom discovery is sought and for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed.R.Civ.P. 26(c). As the party seeking the protective order, the District of Columbia has the burden showing that good cause exists for the relief it seeks. Specifically, good cause exists under Rule 26(e) when justice requires the protection of a party or a person from any annoyance, embarrassment, oppression, or undue burden or expense. The party requesting a protective order must make a specific demonstration of facts in support of the request as opposed to conclusory or speculative statements about the need for a protective order and the harm which will be suffered without one. Indeed, “[t]he moving party has a heavy burden of showing ‘extraordinary circumstances’ based on ‘specific facts’ that would justify such an order.” Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 71, 75 (D.D.C.1998) (citations omitted). 2. Motion to Compel Under Federal Rule of Civil Procedure (“Rule”) 37(a), a party may move the court in which the action is pending for an order compelling disclosure of information sought in discovery. Fed.R.Civ.P. 37(a). The party must certify that the movant has conferred in good faith with the party refusing disclosure in an effort to avoid court action. Id. B. Defendant’s Objections and Responses to Plaintiffs Interrogatories and Requests for Production of Documents Plaintiff served his interrogatories and requests for production of documents on May 25, 2004. The District of Columbia responded to the requests on July 15, 2004 and provided amended answers on September 28, 2004. As demonstrated by the following chart, in several instances, defendant lodged different objections in each of its responses, In addition, the arguments made by defendant in its pleadings sometimes mirror these objections, but in regard to" }, { "docid": "1395680", "title": "", "text": "the complaints’ allegations.” As such, the Patent/Investigation Group requests are relevant to the claims and defenses in the case. The document requests are not fishing expeditions nor based on mere speculation and conjecture. The nature of the action necessitates a broad scope of discovery. At the very least, the information sought by these requests is reasonably calculated to lead to the discovery of admissible evidence. As such, they are relevant to the claims and defenses in this case. To deny discovery, then, on these requests would abuse this court’s broad discretion. Having thus determined that the objected — to document requests are relevant to the claims and defenses of any party, the court now turns its attention to whether a protective order would be appropriate. B. Because the liberality of pretrial discovery has the potential to impinge upon the privacy of a party, courts may issue protective orders which restrict permissible discovery if it would unduly annoy or burden the other party. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34,104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). Rule 26(c) of the Federal Rules of Civil Procedure states, in pertinent part, that [ujpon motion by a party . accompanied by a certification that the movant has in good faith conferred ... with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... (4) that certain matters not be inquired into, or that the scope of the disclosure of discovery be limited to certain matters.” Fed R. Civ. P. 26(c). Still, a court is given broad discretion regarding whether to issue a protective order. Dove v. Atl Capital Corp., 963 F.2d 15, 19 (2d Cir.1992) (grant and nature of protection is singularly within the district court’s discretion). That said, a court may issue a protective order only after the moving party demonstrates good cause. In re Agent Orange Prod. Liab. Litig.," }, { "docid": "22881032", "title": "", "text": "inherent power to accept late claims despite contrary terms of agreement), and we note that, despite this “modification,” appellants have not sought rescission of the settlement agreement. B. Right of Access Magistrate Scheindlin, in an opinion adopted by the district court, determined that both Rule 26(c) and Rule 5(d) of the Federal Rules of Civil Procedure “require that discovery is presumptively open to public scrutiny unless a valid protective order directs otherwise,” Protective Orders Opinion, 104 F.R.D. at 568, and that, as a result, appellee had a statutory right of access to the subject discovery materials. Appellee, joined by amici curiae, urges us to affirm the district court’s order on constitutional, common law and statutory grounds. Because we hold that the statutory right of access relied on by the district court sufficiently supports the court’s order, we need not discuss the other grounds raised on appeal. Rule 26(c) provides, in pertinent part, that “[ujpon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense____” Fed.R.Civ.P. 26(c). A plain reading of the language of Rule 26(c) demonstrates that the party seeking a protective order has the burden of showing that good cause exists for issuance of that order. It is equally apparent that the obverse also is true, i.e., if good cause is not shown, the discovery materials in question should not receive judicial protection and therefore would be open to the public for inspection. Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37, 104 S.Ct. 2199, 2209, 81 L.Ed.2d 17 (1984) (approving trial court’s finding, under Washington state statute identical to Rule 26(c), that party seeking protective order had shown good cause for issuance of order; implicit conclusion that information would have been available to public absent demonstration of good cause). Any other conclusion effectively would negate the good cause requirement of Rule 26(c): Unless the public has a presumptive right of access to discovery materials," }, { "docid": "18276887", "title": "", "text": "and any objection not raised is waived. Fed.R.Civ.P. 33(b)(4). “Mere recitation of familiar litany that interrogatory is ‘overly broad, burdensome, oppressive, and irrelevant’ ” does not suffice as specific objection. Momah v. Albert Einstein Medical Center, 164 F.R.D. 412, 417 (E.D.Pa.1996) (quoting Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir.1982)). 8. Discovery-Motion for Protective Order. Pursuant to Federal Rule of Civil Procedure 26(c), a party called upon to answer discovery may move the Court for a protective order to avoid “annoyance, embarrassment, oppression, or undue burden or expense.” The moving party must certify he has attempted to resolve the dispute without judicial action. Id. If the Court finds the Motion meritorious, it may order that the party requesting discovery not have the material, have discovery only upon certain terms, have discovery by a different method, have discovery only upon limited matters, have discovery with only certain persons allowed to access the material, have a deposition opened only upon court order, not have a trade secret opened to the public, or that the parties file simultaneous discovery of specified material that only a court order will open. Id. The moving party bears the burden of showing good cause why the protective order should be granted. Lohrenz v. Donnelly, 187 F.R.D. 1, 3 (D.D.C.1999). 9. Discovery-Interrogatories-Motion to Compel. Motions to compel responses to interrogatories are governed by Federal Rule of Civil Procedure 37(a)(2)(B). This Rule provides that if “a party fails to answer an interrogatory submitted under Rule 33 ... the discovering party may move for an order compelling an answer.” Id. C. Discussion I. The Motion for a Protective Order The Court first addresses Plaintiffs’ Motion for a Protective Order. Plaintiffs ask the Court to grant the order to protect them from Defendant’s continuing discovery requests. Defendants ask the Court to deny the order. Each party has raised several arguments for or against the order, as noted above. The Court first considers whether the Motion is timely. Federal Rule of Civil Procedure 26(e) does not contain any explicit time limit for filing a motion for a protective order. There" }, { "docid": "21012602", "title": "", "text": "of any party. Fed. R.Civ.P. 26(b)(1). However, a district court may limit discovery “for good cause shown” by making “any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” including that the discovery not be had or that it be had only by a method other than that selected by the party seeking discovery. Fed.R.Civ.P. 26(c). “The burden of persuasion in a motion ... for a protective order is borne by the movant.” Jones v. Hirschfeld, 219 F.R.D. 71, 74-75 (S.D.N.Y.2003) (citing Dove v. Atl. Capital Corp., 963 F.2d 15, 19 (2d Cir.1992)). To establish good cause, a party must show that disclosure will result in a specific injury. See In re Terrorist Attacks on Sept. 11, 2001, 454 F.Supp.2d 220, 221-22 (S.D.N.Y.2006); Wiwa v. Royal Dutch Petroleum Co., No. 96 CIV. 8386, 2006 WL 2724024, at *1 (S.D.N.Y. Sept.22, 2006); but see Topo v. Dhir, 210 F.R.D. 76, 77-78 (S.D.N.Y.2002) (“specificity requirement” does not apply to private individuals). As discussed above, plaintiff has articulated the specific harm from disclosure of his identity. Given the private nature of the information at issue, and its potential for misuse, plaintiff has shown good cause to prevent the disclosure of his identity other than for purposes of this litigation. See Kelly v. City of New York, No. 01 Civ. 8906, 2003 WL 548400, at *5 (S.D.N.Y. Feb.24, 2003); Flaherty v. Seroussi, 209 F.R.D. 300, 304 (N.D.N.Y. Feb.5, 2002); In re Savitt/Adler Litig., No. 95-CV-1842, 1997 WL 797511, at *3 (N.D.N.Y. Dec. 23, 1997). As to the requirement of the Acknowledgment, defendants have raised concerns regarding them ability to conduct discovery under the Protective Order. However, defendants’ concerns are entirely speculative. Counsel for the Yeshiva states that in his experience, “asking a witness to sign a protective order prior to talking about a particular individual ... will have a chilling effect detrimental to the conduct of effective discovery in this case.” Moskowitz Aff. at 17. Defense counsel points to two potential witnesses he contacted who did not want to cooperate and concludes that the" }, { "docid": "23548271", "title": "", "text": "justified”). However, BNY must produce the Disputed Documents in their entirety, subject to a confidentiality order as outlined below. c. Confidentiality BNY asserts that the Disputed Documents “are among its most proprietary manuals.” Affidavit of Maria M. Patterson in Opposition to Defendants’ Motion to Compel the Production of Documents and for Sanctions dated February 3, 1997 (“Patterson Aff.”) If 8; BNY Opposition Memo at 8. BNY also claims that it goes to great lengths to safeguard the confidentiality of the manuals, maintaining strict rules for their distribution to bank employees and third parties. Patterson Aff. HIT 6-7; BNY Opposition Memo at 8-9. Moreover, BNY contends that disclosing the complete manuals would be detrimental to its business, since it would be placed at a severe competitive disadvantage if BNY competitors secured the information contained in them. Patterson Aff. 11119-10; BNY Opposition Memo at 8-9. The Federal Rules of Civil Procedure provide the trial judge with the discretion to determine whether to limit the boundaries of discovery “in light of the relevant facts and circumstances of a particular case.” Gelb v. American Telephone and Telegraph Co., 813 F.Supp. 1022, 1034 (S.D.N.Y.1993) (citation omitted). For example, Rule 26(c) states, in relevant part, that [u]pon motion by a party ... and for good cause shown, the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense, including ... that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way. The moving party must establish that the information sought is confidential. Sommer v. Aronow, No. 95 Civ. 9230, 1996 WL 399820, at *2-3 (S.D.N.Y. July 16, 1996). In addition, the Second Circuit has made clear that [a] plain reading of the language of Rule 26(c) demonstrates that the party seeking a protective order has the burden of showing that good cause exists for issuance of that order---- [I]f good cause is not shown, the discovery materials in question should not receive judicial protection and therefore would be open to" }, { "docid": "5011160", "title": "", "text": "objected to plaintiffs’ First Request for Production of Documents to Defendant Michigan Education Association (MEA). This request seeks the production of documents relating to MEA’s business affairs. The documents sought include all expense statements, vouchers, activity reports and time records made by the MEA since 1974. Defendant Unions contend that although plaintiffs have offered to copy the requested documents during normal business hours at plaintiffs’ expense, plaintiffs’ request would be extremely time-consuming and expensive in light of the minimum amounts of money in controversy in the present case. Additionally, defendant Unions contend that the relevance of the documents sought by plaintiffs deals only with the issue of damages suffered by plaintiffs. Therefore, defendant Unions contend that discovery should be postponed in the instant case until the issue of liability is determined. For the reasons that follow, defendants’ motion is denied. Rule 34 of the Federal Rules of Civil Procedure provides that a party may serve on another party a request to produce and permit inspection of documents in possession of the party upon whom the request is served. The scope of discoverable documents is governed by Rule 26 which provides that discovery is permitted into “any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Fed.R.Civ.P. Rule 26(b). In the present case, defendants do not contest the relevance of the information sought by plaintiffs. Rather, defendants contend that complying with plaintiffs’ request would cause defendants undue burden and expense. Protective orders are generally available pursuant to Rule 26(c) upon a showing of good cause. Where justice requires, a protective order may issue to protect a party from embarrassment, oppression, or undue burden and expense. However, good cause is not established merely by showing that discovery may involve inconvenience and expense. Isaac v. Shell Oil Co., 83 F.R.D. 428 (E.D.Mich.1979); Alexander v. Rizzo, 50 F.R.D. 374 (E.D.Pa.1970). In support of their motion, defendants contend that discovery in cases similar to the present case has taken weeks and has required the copying of over 70,000 documents. Defendants allege that there is no reason to believe that" }, { "docid": "4477534", "title": "", "text": "for excusal from the duty to appear and give oral testimony is severely restricted, however, and decisions quashing subpoenas ad testificandum are accordingly rare.” 5A J. Moore & J. Lucas, Moore’s Federal Practice ¶ 45.05[3] (1990); see Horizons Titanium Corp. v. Norton Co., 290 F.2d 421 (1st Cir.1961) (until witness appears there is no guide to his testimony). Defendant’s request for a protective order is governed by Fed.R.Civ.P. 26(c) which provides in pertinent part: Upon motion by a party ... and for good cause shown, the court ... may make any order which justice requires to protect a party ... from annoyance, embarrassment, oppression, or undue burden or expense, including (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions ... (4) that certain matters not be inquired into. Id. The party seeking a protective order has the burden of showing the existence of good cause for the issuance of a protective order. See Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 778 (1st Cir. 1988), cert. denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989). This court now turns to a consideration of the particular grounds asserted by the defendant in support of its motion. A. Relevance “Relevancy is to be broadly construed at the discovery stage of litigation and a request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the action.” Gagne v. Reddy, 104 F.R.D. 454, 456 (D.Mass.1984) (quoting Miller v. Doctor’s General Hospital, 76 F.R.D. 136, 138 (W.D.Okla.1977)). Mr. Owens alleges that he has no personal knowledge of the FOIA request or appeal submitted by the plaintiff. He further alleges that he has no personal knowledge of the documents provided to or withheld from the plaintiff in response to the above mentioned request and appeal and that he has no personal knowledge of the FOIA exemptions asserted by the I.R.S. in withholding the documents. (Declaration of Marcus Owens, Docket Entry # 16). Mr. Owens was, however, apparently involved" }, { "docid": "19214001", "title": "", "text": "indicating that, if a protective order passes muster under Rule 26(c), it must, of necessity, be constitutional. See Oklahoma Hospital Association v. Oklahoma Publishing Co., 748 F.2d 1421, 1424 (10th Cir.1984); Worrell Newspapers of Indiana, Inc. v. Westhafer, 739 F.2d 1219, 1223-24 n. 4 (7th Cir.1984); Tavoulareas, supra, 737 F.2d at 1172—73; In re Agent Orange Product Liability Litigation, 104 F.R.D. 559, 566 (E.D.N.Y.1985). Others, however, have emphasized that Seattle Times requires a restriction to be no greater than necessary to protect the public interest, see Michelson v. Daly, 590 F.Supp. 261 (N.D.N.Y.1984), and, indeed, the Supreme Court cites Seattle Times for that very proposition. See Wayte v. United States, — U.S. -, -, 105 S.Ct. 1524, 1533, 84 L.Ed.2d 547 (1985). The court finds the Seattle Times decision imprecise on this point. Its admonition that restrictions imposed by protective orders be no greater than necessary, 104 S.Ct. at 2207, is absent from the final formulation of its holding. See Id. at 2209-10. Such absence has one of two meanings: either the “good cause” standard enunciated by Rule 26(c) of necessity takes into account the notion that protective orders are to be narrowly drawn, or one looks to “good cause” in the first instance, and, only if it is present, to the first amendment implications thereafter. In either event, the appropriate next step is an analysis of the instant Protective Order under Rule 26(c). C. The Rule 26(c) Analysis Federal Rule of Civil Procedure 26(c) states: Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2). that the discovery may be had only on specified terms and conditions, including a designation of the time or place;" }, { "docid": "23589631", "title": "", "text": "certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the disclosure or discovery not be had; (2) that the disclosure or discovery maybe had only on specified terms and conditions. Fed.R.Civ.P. 26(c). Rule 45 provides a corresponding level of protection for persons subject to subpoena. 9A Wright & Miller, Federal Practice and Procedure: Civil 2d § 2449, at p. 75 (1995). Rule 45(c), entitled “Protection for Persons Subject to Subpoenas,” in relevant part states: (c)(2)(B) ... a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection and copying of any or all of the designated materials or the premises. (c)(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it (iv) subjects a person to undue burden. Fed.R.Civ.P. 45(c)(2)(B), (c)(3)(A)(iv). The failure to serve written objections to a subpoena within the time specified by Rule 45(c)(2)(B) typically constitutes a waiver of such objections. United States v. International Bus. Mach. Corp., 70 F.R.D. 700, 701-02 (S.D.N.Y.1976); see Krewson v. City of Quincy, 120 F.R.D. 6, 7 (D.Mass. 1988) (citing cases from various district courts). “In unusual circumstances and for good cause, however, the failure to act timely will not bar consideration of objections.” Semtek Int’l, Inc. v. Merkuriy Ltd., No. 3607 DRH, 1996 WL 238538, at *2 (N.D.N.Y. May 1, 1996); see IBM, 70 F.R.D. at 702 & n. 9; Angell v. Shawmut Bank Conn. Nat’l Assoc., 153 F.R.D. 585, 590 (M.D.N.C.1994); In re Goodyear Tire & Rubber Co. Sec. Litig., 1991 WL 172930, at" }, { "docid": "11777993", "title": "", "text": "makes clear that any personal information which remains in the documents produced by Defendants will be redacted before said documents are turned over to Petitioners. Moreover, as Petitioners seek to litigate only a completely ancillary issue from the underlying merits of this settled lawsuit, we find that there can be no “tangible prejudice” to the parties. Finally, Defendants’ argument that they are prejudiced by having relied on this Court’s March 26,1998 protective order does not sufficiently outweigh the strong public interest in disclosure of the documents produced by Defendants which would be lost if intervention is not allowed. See, e.g., Public Citizen, 858 F.2d at 787 (granting Public Citizen’s motion to intervene and finding it to be timely because “there is a strong public interest in the documents at issue, which concern an important public health issue”). Therefore, we grant Petitioners’ petition to intervene and proceed to our analysis of their motions to obtain access to the “so-called” confidential documents produced by the City of Chicago in this settled lawsuit. B. Motion to Obtain Access Petitioners base their access claim first on Rules 5(d) and 26(c) of the Federal Rules of Civil Procedure. Rule 5(d) requires that all discovery materials must be filed with the district court, unless the court orders otherwise. Fed.R.Civ.P. 5(d). Rule 26(c) provides, in pertinent part, that “[u]pon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden.... ” Fed.R.Civ.P. 26(c). These Rules and “[mjost eases endorse a presumption of public access to discovery materials,” Citizens First Nat’l Bank v. Cincinnati Ins. Co., 178 F.3d 943, 946 (7th Cir.1999), and a plain reading of Rule 26(c) demonstrates that, if good cause is not shown for maintaining a protective order, “the discovery materials in question should not receive judicial protection and therefore would be open to the public for inspection.” In re “Agent Orange” Prod. Liab. Litig., 821 F.2d 139, 145 (2d Cir.1987) (holding that the" }, { "docid": "23548272", "title": "", "text": "particular case.” Gelb v. American Telephone and Telegraph Co., 813 F.Supp. 1022, 1034 (S.D.N.Y.1993) (citation omitted). For example, Rule 26(c) states, in relevant part, that [u]pon motion by a party ... and for good cause shown, the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense, including ... that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way. The moving party must establish that the information sought is confidential. Sommer v. Aronow, No. 95 Civ. 9230, 1996 WL 399820, at *2-3 (S.D.N.Y. July 16, 1996). In addition, the Second Circuit has made clear that [a] plain reading of the language of Rule 26(c) demonstrates that the party seeking a protective order has the burden of showing that good cause exists for issuance of that order---- [I]f good cause is not shown, the discovery materials in question should not receive judicial protection and therefore would be open to the public for inspection---- Any other conclusion effectively would negate the good cause requirement of Rule 26(e). In re “Agent Orange” Product Liability Litigation, 821 F.2d 139, 145-46 (2d Cir.1987) (internal citations omitted). Under Rule 26(c), the moving party is required to establish good cause by a “particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Havens v. Metropolitan Life Insurance Co., No. 94 Civ. 1402, 1995 WL 234710, at *10 (S.D.N.Y. April 20, 1995) (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir.1986)); see also 8 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2035 (1994). “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(e) test.” Cipol-lone, 785 F.2d at 1121. Instead, the party resisting discovery must prove that disclosure of the confidential information will result in a “clearly defined and very serious injury to its business.” Gelb, 813 F.Supp. at 1034 (quotations omitted). It is clear that the materials at issue" } ]

[ { "docid": "10538760", "title": "", "text": "§ 507(a)(7). The confirmation hearing in this case was originally scheduled on September 23, 1997, on which date the Proceeding was filed. Before the court for confirmation is the Debtors’ Second Amended Plan of Reorganization (“the Plan”), filed on September 16, 1997. The Plan provides for payments of $95.82 monthly for sixty (60) months, to be distributed to the Trustee’s commissions, several holders of modest secured claims, and $2,990.39 to a priority claim of the Internal Revenue Service (“the IRS”). No distribution to general unsecured creditors is contemplated. Objections to confirmation of the Plan have been filed by the IRS and by the Defendant. The IRS states that the Debtors did not file their 1996 income tax return, which the Debtors contend in the Plan was in fact done, and that the Plan is not sufficiently funded to pay its priority claim of $6,808.49 based on estimated taxes. The Defendant objects to the Plan’s failure to provide for his priority claim and the failure of the Schedules to adequately disclose the Wife’s income. The confirmation hearing was continued to the date of the scheduled trial of the Proceeding, November 13, 1997. In addition to seeking declarations that the Defendant is not entitled to the mortgage credits due to the discharge in the Chapter 7 Case and that his claim be reclassified as a general unsecured claim, the Debtors also seek an affirmative recovery of “the approximate sum of $1,742.26” from the Defendant, apparently representing amounts already, allegedly improperly, credited against the Defendant’s support payments. The request for affirmative relief prompted this court to enter an order of November 6, 1997, requiring the joinder of the Standing Chapter 13 Trustee, Edward Sparkman, Esquire (“the Trustee”), as party to the Proceeding. See 11 U.S.C. § 323; Richardson v. United Parcel Service, 195 B.R. 737 (E.D.Mo.1996); Krank v. Utica Mutual Ins. Co., 109 B.R. 668 (E.D.Pa.), aff'd, 908 F.2d 962 (3d Cir.1990); and Cain v. Hyatt, 101 B.R. 440, 442 (E.D.Pa.1989). Although the Trustee seemingly should have been joined as a plaintiff, he was added as a defendant in an Amended Complaint filed" } ]

[ { "docid": "8349298", "title": "", "text": "or (C) the debtor surrenders the property securing such claim to such holder; and (6) the debtor will be able to make all payments under the plan and to comply with the plan.... Most of the texts of the respective Objections were consumed with a litany of the alleged misdeeds of the Debtors’ present counsel, David M. Still, Esquire, over the course of these proceedings. The most serious, chronicled in Fricker II, slip op. at 6-7, concerned the disposition of the Debtors’ “escrow deposits” with their counsel during the course of this case , which, in testimony in the adversary proceeding, the Debtors indicated were being saved to make current payments to Meritor. On May 8,1990, after a series of efforts by the Debtors’ counsel to evade this disclosure, see id., it was discovered that, while the Debtors had deposited $21,087.88 with their counsel since the commencement of the case, part of which was paid to the trustee, the better part of it, i.e., $12,474.72, was withdrawn by the Debtors’ counsel for unapproved counsel fees and costs, and only $19.66 potentially payable to Meritor remained in escrow. Id. The Objectors also questioned whether the sale of the Debtors’ business, Brutus, Inc. (“Brutus”), was an event which was likely to occur, as it had been in the offing but unconsummated since before the filing of this case on May 24, 1989. The Standing Chapter 13 Trustee, Edward Sparkman, Esquire (“the Trustee”), also appeared at the July 19, 1990, hearing. The Trustee stated that the Debtors’ payments due to him were current through only May, 1990. He also stated that, while the Plan contemplated payment of $49,000, the secured claims filed and not objected to by Meritor Savings Bank (“Meritor”) (about $21,700), Smith Kline\" and French Federal Credit Union (“SKFFCU”) (about $12,900), and the Internal Revenue Service (“IRS”) (about $8,700), plus the $40,000 claim allowed in Fricker II to AAA, to-talled over $83,000. He stated that his own projected commissions of ten (10%) percent of the amount paid would bring the amount necessary to pay all allowed secured claims to a figure" }, { "docid": "362161", "title": "", "text": "of a creditor unsecured on the date of the petition. Section 546(b) is a special limitation on the bankruptcy trustee’s avoiding powers which validates specific state statutes allowing a later-perfected security interest to have priority over the bankruptcy trustee. See, e.g., T.C.A. § 47-9-301(2) and T.C.A. § 47-9-312(4) (purchase money security interest has priority if perfected within 20 days after the collateral comes into possession of the debtor). T.C.A. § 67-4-217 does not protect an unsecured creditor on the date of petition from the trustee’s avoiding powers under § 544. The United States District Court for the Eastern District of Tennessee recognized this in Ford Motor Credit Co. v. Ken Gardner Ford Sales, Inc., 23 B.R. 743 (E.D.Tenn.1982): The Tennessee “escape statute” § 67-4015 does not provide that the late payment of the privilege tax acts to perfect a security interest against an earlier interest holder.... In the bankruptcy setting, the trustee’s standing as a lien creditor pursuant to 11 U.S.C. § 544 allows him to avoid interests not perfected until after the action has commenced, so pay ment of the penalty tax under T.C.A. § 67-4105 after the petition in bankruptcy has been filed is of no effect. Ford Motor Credit Co. v. Ken Gardner Ford Sales, Inc., 23 B.R. at 745-746. Policy considerations support the conclusion that the Bank’s security interest is inferior to the status of the bankruptcy trustee. As the Tennessee Court of Appeals observed: As a matter of public policy, those who violate the laws of this state should not be rewarded. No only are the citizens and their state treasury short-changed, but the creditors who pay the required tax are placed at a competitive disadvantage ... Fairness requires that we deny rewards to those who ignore the requirements of obtaining the privilege of filing. Further, the only real way of enforcing this tax is by refusing to give the benefits of priority to those who are found to have not paid it as they should. American City Bank v. Western Auto Supply Co., 631 S.W.2d at 425. Although the stated result imposes a special" }, { "docid": "1152897", "title": "", "text": "U.S.C. § 6402(d) should be brought against the federal agency on whose behalf the reduction was made, not against the IRS. Han-kerson offered no rejoinder to this argument. Since the DOE is liable to the Debtors under § 550(a)(1) irrespective of the liability of the IRS, we suspect that the fact that only the DOE will be rendered liable to the Debtors is deemed not troublesome by them. E. CONCLUSION An Order granting relief to the Debtors against the DOE only will therefore be entered. . The failure of Hankerson to name the Trustee in her case, Charles Coyne, Esquire, could have been a fatal defect. See Krank v. Utica Mutual Insurance Co., 109 B.R. 668 (E.D.Pa.), aff'd, 908 F.2d 962 (3d Cir.1990); and Cain v. Hyatt, 101 B.R. 440 (E.D.Pa.1989). However, the failure of the Defendants to raise the defense that the Trustee is an indispensable party constitutes a waiver of this issue. Bankruptcy Rule 7012; Federal Rule of Civil Procedure 12(h)(2); and In re Parker, 80 B.R. 729, 733 (Bankr.E.D.Pa.1987). . Despite the staleness of this indebtedness, recent federal legislation has eliminated the running of any statute of limitations against federal assignees of student loan debts. 20 U.S.C. § 1091a(a). . The lack of mutuality was particularly prominent in the Howard case because the only defendant was PHEAA, a state agency, defending against a setoff of the debt by the federal government. As a mediate transferee of the setoff, PHEAA was properly held liable under 11 U.S.C. § 550(a)(2), pursuant to the controlling law as it existed in the Third Circuit at that time. However, since the Howard decision, the Supreme Court has decided Hoffman v. Connecticut Dep’t of Income Maintenance, 492 U.S. 96, 100-04, 109 S.Ct. 2818, 2822-24, 106 L.Ed.2d 76 (1989), overruling Vazquez v. Pennsylvania Dep’t of Public Welfare, 788 F.2d 130, 133 (3d Cir.), cert. denied, 479 U.S. 936, 107 S.Ct. 414, 93 L.Ed.2d 365 (1986). Hoffman precludes any entry of a judgment against PHEAA under 11 U.S.C. § 550(a)(2). It also precludes any relief against PHEAA in the Pettis case. . The bankruptcy court" }, { "docid": "6690016", "title": "", "text": "be deemed satisfied.... Debtor’s counsel and the Chapter 13 Trustee disagree as to when the lien strip becomes effective. The Chapter 13 Trustee takes the position that debtor must complete the plan and obtain a discharge. Paragraph 19 of debtor’s proposed plan states: 19. Other Provisions: Debtors will be commencing a lien stripping action against the creditor named below pursuant to 11 USC 1322 and 11 USC 506(d) since the lien is completely underse-cured since the first deed of trust exceeds the fair market value of the property. Upon confirmation, creditor will be deemed to accept the allowed secured value and Fair Market Value of its security interest set forth below and pursuant to this provision will be binding, unless creditor timely objects and the court orders otherwise. This provision is in no way meant to contest the validity, extent, or priority of the creditor’s lien, but rather, solely in furtherance of an action to be filed to strip off a creditor’s wholly unsecured lien through a valuation process under 506(a), 1322(b)(2) and Rules 3012 and 901b See In re Millspaugh, 302 B.R. 90, 2003 Bankr.LEXIS 1779 (Bankr.D.Idaho 2003). (Emphasis added.) The Chapter 13 Trustee thereafter lodged his own proposed form of Confirmation Order which recited that the debt to the senior lienholder exceeded the value of the debtor’s residence and: (d) as a result and pursuant to section 1322(b)(2) the Creditor’s lien may be modified and stripped by this Plan; (e) under the Plan, the Creditor will be treated and paid as unsecured creditor; and (f) upon completion of the Plan and Debtor’s discharge, the debt to Creditor secured by Creditor’s Second Trust Deed shall be deemed fully satisfied and Creditor shall take all steps necessary and appropriate to reconvey and release the Second Trust Deed against the Home. Debtor’s counsel promptly filed opposition to the Trustee’s proposed order, and submitted an alternative. The Opposition stated in relevant part: 3. The Trustee presents a falsity before this Court by misrepresenting the prior Court Order dated 11/17/08. Specifically, the Trustee alleges a new requirement of “debtors’ discharge,” when in fact" }, { "docid": "6065932", "title": "", "text": "and objections thereto are not filed until years later. Federal Rule of Bankruptcy Procedure 3002 is silent on whether or when a secured claim holder must file a proof of claim to protect its rights in a Chapter 13 case. Nothing in the Bankruptcy Code or Bankruptcy Rule 3002(a) requires a secured claim holder to file a claim. See In re Burrell, 85 B.R. 799, 800 (Bankr.N.D.Ill.1988). The United States Supreme Court reemphasized this reasoning by concluding that failure to file does not ipso facto affect a lien’s validity. See Dewsnup v. Timm, 502 U.S. 410, 417-18, 112 S.Ct. 773, 778, 116 L.Ed.2d 903 (1992) (holding that Chapter 7 debtors cannot use § 506(d) to strip down undersecured claims). Though Dewsnup’s often criticized majority holding precluded §§ 506(a) and 506(d) lien strips in Chapter 7 cases, many courts have declined to extend that holding in the reorganization chapters. See, e.g., In re Hernandez, 175 B.R. 962, 965-66 (N.D.Ill.1994) (collecting cases); In re Flowers, 175 B.R. 698, 702 (Bankr.N.D.Ill.1994), aff'd, Bank One, Chicago, N.A. v. Flowers, 183 B.R. 509, 514 (N.D.Ill.1995); In re McDade, 148 B.R. 42, 44 (Bankr.S.D.Ill.1992); Sapos v. Provident Inst of Sav., 967 F.2d 918, 924-25 (3d Cir.1992); In re Bellamy, 962 F.2d 176, 182-83 (2d Cir.1992); Ford Motor Credit Co. v. Lee (In re Lee), 162 B.R. 217, 224 (D.Minn.1993). Hernandez and Flowers both distinguished Dewsnup and declined to preclude lien stripping in Chapter 13 eases because of the provisions of 11 U.S.C. §§ 1322(b)(2) and 1325(a)(5)(B). The Court also concludes that the prevailing and better view is to limit Dewsnup’s holding to Chapter 7 cases. In light of the rationales favoring lien stripping in Chapter 13 cases set forth in Hernandez- and Flowers, the Court is persuaded that it should follow suit. If a secured creditor seeks distribution from the Chapter 13 Standing Trustee administering a confirmed plan it must file a proof of claim. Bankruptcy Rule 3021 requires distributions pursuant to plans to be made only to those creditors whose prepetition claims are allowed after confirmation. An allowed claim under 11 U.S.C. § 502 is" }, { "docid": "10523286", "title": "", "text": "ORDER JAMES R. SACCA, Bankruptcy Judge. The issue before the Court in this Chapter 13 case is whether it is the responsibility of the Chapter 13 trustee, the debtor or special counsel to file the application to retain special counsel under 11 U.S.C. § 327(e) to prosecute a state law cause of action in which the Chapter 13 debtor is in possession of the claim. The confirmation hearing on Debtors’ Chapter 13 plan was held on December 1, 2011. At the § 341 Meeting of Creditors, the Debtors testified that they had retained an attorney, Jeffrey Flynn, Esq. (“Flynn”), to represent them in connection with a pre-petition workers’ compensation claim, which claim had been denied and which denial was on appeal. The Chapter 13 Trustee objected to Debtors’ Plan because (a) the Debtors had neither filed an application nor obtained an order approving the retention of Flynn as special counsel and (b) the failure to obtain an order approving retention of special counsel should preclude confirmation. At the confirmation hearing, the Court concluded that (1) there was no per se rule requiring approval by the Court of the retention of special counsel as a condition of confirmation and (2) under the facts of this case, including that the claim had already been denied, the entry of an order approving the retention of special counsel was not required for confirmation of the plan, although a different result may be appropriate depending on the facts of the case and the terms of the plan. The Debtors’ bankruptcy attorney also filed what was styled as a “Notice of Action Potentially Required Pursuant to 11 U.S.C. Sec. 327(e)” (the “Notice”), advising Flynn that, inter alia, he either needed to personally prepare and file the application to be retained or contact the Chapter 13 Trustee to be retained. The Court took the issue under advisement because the parties requested the opportunity to brief the issue. Section 327(e) provides the following: The trustee, with the court’s approval, may employ, for a specified special purpose, other than to represent the trustee in conducting the case, an attorney" }, { "docid": "6522886", "title": "", "text": "980 (Bankr.E.D.Tenn.1981) aff’d, 21 B.R. 692 (E.D.Tenn.1982). However, that court clearly acknowledged that the Code permits full payment of administrative expenses in advance of all other claims. Id. at 983. The general practice and the edict of the Code are that administrative expenses are to be paid before other claims in both Chapter 11 and Chapter 7 cases. Similarly, subsection 1326(b) provides: (b) Before or at the time of each payment to creditors under the plan, there shall be paid— (1) any unpaid claim of a kind specified in section 507(a)(1) of this title; and (2) if a standing trustee appointed under section 1302(d) of this title is serving in the case, the percentage fee fixed for such standing trustee under section 1302(e) of this title. This provision requires the payment of administrative expenses and trustee fees before or contemporaneously with creditors. Subsection 1326(c) provides for payments to creditors as specified in the plan or in the order confirming the plan. Advance payment of attorney fees are regularly obtained in Chapter 7 and 11 cases where retainers are paid prior to the filing. Such practice is also permissible in a Chapter 13 case. There appears to be no basis to treat administrative expenses differently in Chapter 13 cases than in Chapter 7 or Chapter 11 cases. Delaying the payment of these expenses discourages rather than encourages the use of Chapter 13 relief. Assuring attorneys that they will be paid as readily in Chapter 13 as in Chapter 7 cases may prompt increased utilization of the Chapter 13 debt adjustment provisions. The plan proposes to pay this secured claim in full in deferred payments with interest at 10% per year. This should be adequate to compensate the credit union for the delay in payment. In addition, the credit union has not shown that the 90 to 120 day delay in payment will prejudice its position or cause any harm other than the delay, which is compensated for by the interest. Its only collateral is a 1978 Dodge which it does not contend is rapidly depreciating in value. If such were the" }, { "docid": "1078422", "title": "", "text": "trustee, the court, with or without a hearing, shall prohibit or condition such use, sale, or lease as is necessary to provide adequate protection of such interest. Thus, a Chapter 13 debtor has an obligation to provide adequate protection to a creditor who holds a security interest in property used by the debtor in the pre-confirmation time period. See In re English (General Motors Acceptance Corp. v. English), 20 B.R. 877, 879 (Bankr.E.D.Pa.1982); In re Brickel (Brickel v. Merchants National Bank of Manchester), 11 B.R. 353, 355 (Bankr.D.Me.1981); In re Williams (ABD Federal Credit Union v. Williams), 6 B.R. 789, 792 (Bankr.E.D.Mich.1980). See also In re Johnson, 63 B.R. 550 (Bankr.D.Colo.1986). DMR and GMAC assert that in the circumstances of a home loan or an automobile loan, adequate protection should consist of the debtor’s regular monthly loan payment. The Court agrees. Such a requirement is consistent with 11 U.S.C. § 361(1), and none of the parties in these seven cases have argued for any different adequate protection requirement. The Court further concludes that the debtors should make these pre-confirmation adequate protection payments to the secured creditors through the trustee’s office. This will allow the trustee to fulfill his duties to monitor the debtors’ compliance and to report to the Court at the confirmation hearing. After confirmation, the secured creditors’ claims will be paid through the trustee in most cases, and confusion will be minimized if the debtors make all of the required Chapter 13 payments that way. See also 11 U.S.C. § 363(e). III. The Court must reject the trustee’s argument that the relief sought is prohibited by 11 U.S.C. § 1326(a), which provides: (a)(1) Unless the court orders otherwise, the debtor shall commence making the payments proposed by a plan within 30 days after the plan is filed. (2) A payment made under this subsection shall be retained by the trustee until confirmation or denial of confirmation of a plan. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan. If a plan is not confirmed, the trustee shall return any such" }, { "docid": "1151775", "title": "", "text": "the debtor is given limited power to avoid such transfers, one limitation being that the transfer must have been involuntary, see 11 U.S.C. section 522(h) and (g)(1)(A). Thus, the trustee enjoys the full panoply of avoidance powers for the benefit of the estate and unsecured creditors, but the debtor’s access to such powers for his or her own benefit is limited to recovering exempt property from noncon-sensual liens and transfers. In Chapter 13, by contrast, the debtor may keep all his or her property, not just exempt property, and proposes a payment plan funded through future income, with the debtor making payments to the Chapter 13 trustee and the trustee making distributions to creditors according to the plan. See 11 U.S.C. sections 1306(b), 1321, and 1322(a)(1). Therefore, unlike a Chapter 7 trustee, a Chapter 13 trustee does not have the duty of collecting estate property and reducing it to money. Compare 11 U.S.C. section 1304(b)(1) with 11 U.S.C. section 704(1). Creditors are protected by the requirements that under the plan, unsecured creditors must fare at least as well as they would if the case were one under Chapter 7, see 11 U.S.C. section 1325(a)(4) (the “best interests of creditors” test), and secured creditors must retain their liens and receive the present value of their collateral through the plan, see 11 U.S.C. sections 506(a) and 1325(a)(5)(B). A Chapter 13 trustee’s compensation is based on a percentage of the payments received from the debtor. See 28 U.S.C. section 586(e) and 11 U.S.C. section 326(b). Thus, a Chapter 13 trustee does not have the same incentive to avoid transfers as a Chapter 7 trustee does. Chapter 13, however, also differs from Chapter 7 in the effect of lien avoidance on a debtor. In Chapter 7, if a lien is not avoided, a debtor wishing to retain tangible personal property serving as collateral must either reaffirm the entire debt (if the creditor is agreeable) or redeem the property by cash payment of its value. See 11 U.S.C. sections 524(c) and 722; In re Edwards, 901 F.2d 1383 (7th Cir.1990). By contrast, Chapter 13 allows" }, { "docid": "1152896", "title": "", "text": "post-petition benefits which it had recouped from the debtor); Norton, supra, 717 F.2d at 774-75 (the court required the IRS to turn over the refunds which it improperly retained from the debtors’ post-petition tax refunds, although it reversed an award of additional damages against the IRS for contempt of court); and University Medical Center v. Sullivan, 122 B.R. 919, 930-33 (E.D.Pa.1990), reconsideration denied, 125 B.R. 121, 124-28 (E.D.Pa.1991) (federal agency required to return funds improperly set off; damages under § 362(h) not awarded solely because the court found the federal agency’s actions were not “willful,” and not because of immunity). The Debtors are seeking recovery of only their improperly-withheld refunds. They are therefore seeking only such relief as the plaintiffs were awarded in Whiting Pools, Lee, Norton, and University Medical Center. Controlling caselaw thus appears to direct the conclusion that federal agencies are not immunized from such relief. Finally, in its submissions in the Hanker-son case, the IRS argues that 26 U.S.C. § 6402(e) specifically provides that any action to recover a refund under 26 U.S.C. § 6402(d) should be brought against the federal agency on whose behalf the reduction was made, not against the IRS. Han-kerson offered no rejoinder to this argument. Since the DOE is liable to the Debtors under § 550(a)(1) irrespective of the liability of the IRS, we suspect that the fact that only the DOE will be rendered liable to the Debtors is deemed not troublesome by them. E. CONCLUSION An Order granting relief to the Debtors against the DOE only will therefore be entered. . The failure of Hankerson to name the Trustee in her case, Charles Coyne, Esquire, could have been a fatal defect. See Krank v. Utica Mutual Insurance Co., 109 B.R. 668 (E.D.Pa.), aff'd, 908 F.2d 962 (3d Cir.1990); and Cain v. Hyatt, 101 B.R. 440 (E.D.Pa.1989). However, the failure of the Defendants to raise the defense that the Trustee is an indispensable party constitutes a waiver of this issue. Bankruptcy Rule 7012; Federal Rule of Civil Procedure 12(h)(2); and In re Parker, 80 B.R. 729, 733 (Bankr.E.D.Pa.1987). . Despite the" }, { "docid": "20381231", "title": "", "text": "Congress enacted BAPCPA “to correct perceived abuses of the bankruptcy system.” Ransom v. FIA Card Servs., N.A, — U.S. —, 131 S.Ct. 716, 178 L.Ed.2d 603 (2011) (addressing the “means test” adopted to “ensure that debtors who can pay creditors do pay them”)(emphasis omitted). The BAPCPA addition of Section 1328(f) curtails the relief available to serial-filing debtors. See In re Victorio, 454 B.R. 759, 779 (Bankr.S.D.Cal.2011), aff'd, 470 B.R. 545 (S.D.Cal.2012). Additionally, Section 306 of the BAPC-PA amendments, which added subsection (i)(I) to Section 1325(a)(5)(B), was entitled “Giving Secured Creditors Fair Treatment in Chapter 13.” Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23, 80. The legislative history of this section demonstrates that Congress included these additions “to require — as a condition of confirmation — that a chapter 13 plan provide that a secured creditor retain its statutory lien until the earlier of when the underlying debt is paid or the debtor receives a discharge.” H.R.Rep. No. 109-31, pt. 1 at 71-72 (2005), 2005 U.S.C.C.A.N. 88, 103. The above construction of Section 1325(a)(5) and Section 1328(f), which prohibits Chapter 20 debtors from stripping off valueless junior mortgages, also makes practical sense when considering the effect of a Chapter 13 plan that does not conclude with a discharge. As this Court has explained, even though a Chapter 20 debt- or is prohibited from obtaining a discharge in his Chapter 13 case under § 1328(f), he may file a Chapter 13 case and take advantage of the other protections available. Branigan v. Bateman, 515 F.3d 272, 283 (4th Cir.2008) (explaining protections). However, upon completion of the Chapter 13 plan, when there is no accompanying discharge, the debtor’s status with his creditors is returned to the status quo ante. See Victorio v. Billingslea, 470 B.R. 545, 556 (S.D.Cal.2012) (citing In re Victorio, 454 B.R. at 779). As a result, any personal liability for the. remaining balances on unsecured debt, such as debt accumulated on a personal credit card, is not eliminated by discharge and those unsecured creditors can seek payment on the outstanding debt upon" }, { "docid": "13941632", "title": "", "text": "“Section 1322(b) also contains certain discretionary provisions which may be included in the plan.” In re Reid, 179 B.R. at 507. The manner of making payments under the Chapter 13 is found at § 1326, which provides: (a)(1) Unless the court orders otherwise, the debtor shall commence making the payments proposed by a plan within 30 days after the plan is filed. (2) A payment made under this subsection shall be retained by the trustee until confirmation or denial of confirmation of a plan. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan as soon as practicable. If a plan is not confirmed, the trustee shall return any such payment to the debtor, after deducting any unpaid claim allowed under section 503(b) of this title. (b) Before or at the time of each payment to creditors under the plan, there shall be paid— (1) any unpaid claim of the kind specified in section 507(a)(1) of this title; and (2) if a standing trustee appointed under section 586(b) of title 28 is serving in the case, the percentage fee fixed for such standing trustee under section 586(e)(1)(B) of title 28. (e) Except as otherwise provided in the plan or in the order confirming the plan, the trustee shall make payments to creditors under the plan. Appointment of persons to serve as standing Chapter 12 or 13 trustees is provided for in 28 U.S.C. § 586(b). Title 28, § 586 also provides for the manner of compensating the trustee: (e)(1) The Attorney General, after consultation with a United States trustee that has appointed an individual under subsection (b) of this section to serve as standing trustee in cases under chapter 12 or 13 of title 11, shall fix— (A) a maximum annual compensation for such individual consisting of— (i) an amount not to exceed the highest annual rate of basic pay in effect for level V of the Executive Schedule; and (ii) the cash value of employment benefits comparable to the employment benefits provided by the United States to individuals who are employed by" }, { "docid": "4708334", "title": "", "text": "the obtaining of credit or the incurring of debt secured by a senior or equal lien on property of the estate that is subject to a lien only if— (A) the trustee is unable to obtain such credit otherwise; and (B) there is adequate protection of the interest of the holder of the lien on the property of the estate on which such senior or equal lien is proposed to be granted. (2) In any hearing under this subsection, the trustee has the burden of proof on the issue of adequate protection. ANALYSIS I. Section 5Jfl Interstate and Fluor argue that the insurance proceeds are not property of the estate. The debtor and Security Pacific contend the insurance proceeds are contemplated by 11 U.S.C. section 541. Property of the estate is broadly construed by both the Bankruptcy Code and the relevant case law. The estate consists of all legal or equitable interest the debtor may hold, as of the commencement of the case, in particular property. Neither possession nor constructive possession by the debtor is required. 11 U.S.C. § 541(a)(1); United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983); In re Hurricane Elkhorn Coal Corp. II, 19 B.R. 609 (Bankr.W.D.Ky.1982), aff'd in relevant part and rev’d on other grounds, 32 B.R. 737 (W.D.Ky.1983), aff'd, 763 F.2d 188 (6th Cir.1985); In re Moskowitz, 13 B.R. 357 (Bankr.S.D.N.Y.1981). Insurance policies and the proceeds from such policies are property of the estate. Matter of Costa, 54 B.R. 22 (Bankr.N.J. 1985); In re Pied Piper Casuals, Inc., 50 B.R. 549 (Bankr.S.D.N.Y.1985); See also, 11 U.S.C. § 541(a)(6) and Bradt v. Woodlawn Auto Workers, F.C.U., 757 F.2d 512 (2nd Cir.1985). Property is not excluded from a bankruptcy estate merely because it is subject to liens or encumbrances. Such encumbered property is typically the object of both motions for use of cash collateral in situations in which a creditor has an interest in such property and motions for turnover in circumstances in' which an entity, other than a custodian, has possession of the property. 11 U.S.C. § 363 and" }, { "docid": "4654369", "title": "", "text": "DECISION DALE E. IHLENFELDT, Bankruptcy Judge. Federal Insurance Company (Federal) and Kurt Van Engel Commission Co., Inc. (Van Engel) have objected to confirmation of the debtor’s proposed plan on the ground that it has not been proposed in good faith as required by Section 1325(a)(3) of the Bankruptcy Code. Hearing on the objections was had on September 20, 1988. At the hearing, the debtor appeared in person and by Attorneys James Conway and Joseph Hemsing; the standing chapter 13 trustee, Thomas King, appeared in person; Federal appeared by Attorney Jeff Liotta; and Van Engel appeared by Attorney Deirdre Elliott. The debtor is presently employed by Austin Grey Iron Foundry of Sheboygan, Wisconsin. For 24 years and until a year or so ago, he had worked as a produce buyer for Schultz Sav-0 Stores, Inc. (Schultz). On May 26, 1988, Schultz filed a civil action in the U.S. District Court against Kurt Van Engel, Kurt Van Engel Commission Co. and the debtor. The complaint in that action alleges that the debtor violated various state and federal laws by accepting kickbacks from Van Engel. It states that on and after 1983, as purchaser of fruits and vegetables for Schultz, he had contracted to pay excessive prices in return for cash payments (kickbacks) to himself. A deposition of the debtor in that action, scheduled to be held on June 29, 1988, was canceled when the debtor filed his chapter 13 petition on June 28, 1988. Federal is involved because of employee theft insurance which it afforded to Schultz. Schultz has submitted a claim to Federal alleging losses in excess of $250,000 as a result of dishonest and fraudulent conduct on the part of the debtor. The debtor’s schedules list the following assets and liabilities ASSETS Tangible Value Lien or Mortgage Claimed Exempt Homestead in Kohler, Wis. $74,020. 54,046.46(1) 20,000. 1987 Nissan Auto 8.500. 8,615.39(2) 1981 Ford Granada Auto 1.500. 1,000. Household Furniture 4,000. 4,000. Clothing 200. 200. (1) United Savings & Loan Assn. (2) Schultz Sav-0 Credit Union Cash and Accounts Credit Union 311.79 Affiliated Fund (IRA) 1,799.50 United S & L 1,869.84*" }, { "docid": "4613956", "title": "", "text": "Philadelphia, Pennsylvania 19142, within fifteen (15) days from the date of this Order. 4. The Creditor shall pay the sum of $1,000.00 to the Standing Chapter 13 Trustee, Edward Sparkman, Esquire, as damages pursuant to 15 U.S.C. § 1640(a)(2)(A)(i). The said Trustee shall determine whether this sum may be claimed as part of the Debtors’ exemptions, and, if it may be, he shall forward this sum to the Debtors forthwith. 5. The parties are urged to attempt to agree upon reasonable attorney’s fees and costs which are due to the Debtors’ counsel, per 15 U.S.C. § 1640(a)(3). If this matter is not resolved within fifteen (15) days, the Debtors’ counsel shall, within thirty (30) days of this Order, file a Motion requesting such fees, said Motion to be procedurally in conformity with In re Meade Land and Development Co., Inc., 527 F.2d 280 (3d Cir.1975); and In re Mayflower Associates, 78 B.R. 41 (Bankr.E.D.Pa.1987). However, if the Debtors’ counsel remit a reasonable request for such fees, which if refused, the said Counsel may recover compensation for time spend on the fee application as well. 6. In light of this disposition, the Creditor’s Motion for relief from the automatic stay in the Debtors’ main bankruptcy case, pursuant to 11 U.S.C. § 362(d), is DENIED. 7. The Deputy in Charge of Bankruptcy Operations is directed to enter copies of this Order into the files and onto the dockets of both the main case and the above adversary proceeding. . The net loan proceeds were, as the Debtors contend, |5,197.00. We count only the money received by the Debtors, and not the other charges, such as insurance charges, fees paid in connection with taking the security in the Debtors’ realty, and the fee to M & S because § 1635(b) specifically provides that a rescinding borrower is “not liable for any finance or other charge, ...\" (emphasis added). The payments, per Mr. Leone’s testimony, were $1,770.90, not $1,770.91, as the Debtors suggest. The Debtors also made an error in subtraction. We note that the only Proof of Claim actually filed by the Creditor" }, { "docid": "6522887", "title": "", "text": "where retainers are paid prior to the filing. Such practice is also permissible in a Chapter 13 case. There appears to be no basis to treat administrative expenses differently in Chapter 13 cases than in Chapter 7 or Chapter 11 cases. Delaying the payment of these expenses discourages rather than encourages the use of Chapter 13 relief. Assuring attorneys that they will be paid as readily in Chapter 13 as in Chapter 7 cases may prompt increased utilization of the Chapter 13 debt adjustment provisions. The plan proposes to pay this secured claim in full in deferred payments with interest at 10% per year. This should be adequate to compensate the credit union for the delay in payment. In addition, the credit union has not shown that the 90 to 120 day delay in payment will prejudice its position or cause any harm other than the delay, which is compensated for by the interest. Its only collateral is a 1978 Dodge which it does not contend is rapidly depreciating in value. If such were the case a different result might be called for. We are advised that the standing Chapter 13 trustee normally pays administrative expenses in deferred payments along with other claims. While we are concerned with the ease of administration of Chapter 13 cases and the inconvenience which inconsistent payment schedules may cause the trustee, the trustee has not objected to the plan provisions in this case. Tinker also objects to the plan because counsel for debtors had not moved for allowance of compensation and reimbursement of expenses prior to submitting the plan. Subsequently, counsel for debtors submitted their motion for allowances which will be heard and determined at the confirmation hearing. Accordingly, Tinker s objection to confirmation of the plan is overruled. . 11 U.S.C. § 726(a)(1) and 11 U.S.C. § 1129(a)(9)(A) adopt the priorities specified at 11 U.S.C. § 507. 11 U.S.C. § 507(a)(1) designates administrative expenses as first priority." }, { "docid": "18894299", "title": "", "text": "§ 323 provides as follows: § 323. Role and capacity of trustee. (a) The trustee in a case under this title is the representative of the estate. (b) The trustee in a case under this title has capacity to sue and be sued. Relying upon § 323(a) and (b), the district court, in Cain, 101 B.R. at 442, held that “[t]he trustee in a case under Chapter 7 is the sole representative of the estate” and, “[a]s such, it is the trustee who ‘has the capacity to sue and be sued.’ ” Thus, Cain holds that [o]n his appointment, the Trustee was vested with title of all of [the debtor’s] property, including insurance policies and rights of action arising under them. Not only did the Trustee hold title to [the debtor’s] assets; he was authorized, exclusively, to bring actions that could have been instituted by the bankrupt for the aggregation of assets and for the protection of creditors. Id. (citing Hanover Insurance Company v. Tyco Industries, Inc., 500 F.2d 654, 657 (3d Cir.1974) (emphasis added). Accord, Krank v. Utica Mutual Insurance Co., 109 B.R. 668-69 (E.D.Pa.1990) (scope of § 541 is quite broad and includes most claims the debtor may have against others; once a cause of action becomes property of the estate, the debtor may not bring suit on that action unless the property has been abandoned by the trustee). In his letter in response to our Order of January 17, 1990, requesting his views, the Trustee expressed little interest in the claim raised in this proceeding. His response might portend an intention to abandon the cause of action, pursuant to 11 U.S.C. § 554(a). If he did abandon the claim, then the Debtor would be free to pursue it. The Debtor could also move to order the Trustee to abandon it under 11 U.S.C. § 554(b). However, in light of the value which this court believes should be attributed to the Debtor’s cause of action, this court may well exercise its discretion to deny abandonment on the Debtor’s motion, see In re Paolella, 85 B.R. 974, 978-79 (Bankr.E.D.Pa.1988)," }, { "docid": "16064442", "title": "", "text": "OPINION DAVID A. SCHOLL, Chief Judge. A INTRODUCTION The instant contested matter presents the issue of whether a Chapter 13 debtor may cure, in his Chapter 13 plan, a default in a nonresidential mortgage obligation which matured pre-petition. While recognizing that 11 U.S.C. § 1322(c)(2) is of no help to the Debtor, we also note that 11 U.S.C. § 1322(b)(2), which is the statutory basis of the contention that such a default cannot be cured, is inapplicable as well. We therefore adhere to our earlier decisions, prior to enactment of § 1322(c)(2), which hold that a cure of a debt which matured pre-petition is permissible under 11 U.S.C. § 1322(b)(3), i.e., In re Taras, 136 B.R. 941, 951-52 & n. 5 (Bankr.E.D.Pa.1992); In re Rowe, 110 B.R. 712, 724 (Bankr.E.D.Pa.1990); In re Klein, 106 B.R. 396, 402-04 (Bankr.E.D.Pa.1989); and In re Ford, 84 B.R. 40, 42-44 (Bankr.E.D.Pa.1988). B. PROCEDURAL AND FACTUAL HISTORY HERBERT WATSON (“the Debtor”) filed an individual Chapter 13 bankruptcy case on March 24, 1995. On May 24, 1995, Meridian Bank (“the Bank”), one of two mortgagees on property owned by the Debtor at 6061-65 Old York Road, Philadelphia, Pennsylvania 19141 (“the Property”), from which the Debt- or operates an auto body shop but in which he does not reside, filed a motion for relief from the automatic stay in order to permit it to foreclose on its mortgage. The Bank’s mortgage was listed on the Debtor’s Schedules in the amount of $11,164.00. The result of a contested hearing of June 20, 1995, on this motion was an Order of June 21, 1995, conditioning the stay on the Debtor’s obtaining adequate insurance for the Premises by June 30, 1995, and maintaining the Debtor’s proposed plan payments of $780 monthly to the Standing Chapter 13 Trustee, Edward Sparkman, Esquire (“the Trustee”), through confirmation, originally scheduled on October 3, 1995. The confirmation hearing was initially continued until the first scheduled date of a hearing on a motion of the Trustee to dismiss the case due to the plan’s infeasibility (“the TMTD”), on November 7, 1995. Thereafter the hearings on confirmation" }, { "docid": "1078423", "title": "", "text": "should make these pre-confirmation adequate protection payments to the secured creditors through the trustee’s office. This will allow the trustee to fulfill his duties to monitor the debtors’ compliance and to report to the Court at the confirmation hearing. After confirmation, the secured creditors’ claims will be paid through the trustee in most cases, and confusion will be minimized if the debtors make all of the required Chapter 13 payments that way. See also 11 U.S.C. § 363(e). III. The Court must reject the trustee’s argument that the relief sought is prohibited by 11 U.S.C. § 1326(a), which provides: (a)(1) Unless the court orders otherwise, the debtor shall commence making the payments proposed by a plan within 30 days after the plan is filed. (2) A payment made under this subsection shall be retained by the trustee until confirmation or denial of confirmation of a plan. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan. If a plan is not confirmed, the trustee shall return any such payment to the debtor, after deducting any unpaid claim allowed under section 503(b) of this title. The issue is whether an adequate protection payment, ordered by the Court pursuant to 11 U.S.C. §§ 1303 and 363(e), is “a payment made under [subsection (a) ],” so that it must be “retained by the trustee until confirmation or denial of confirmation.” 11 U.S.C. § 1326(a)(2). Because subsection (a) refers to “payments proposed by the plan,” and not to court ordered adequate protection payments, it must be held that 11 U.S.C. § 1326(a) does not apply. .Beyond that, the Court recognizes that the protection accorded a secured creditor’s property interest in collateral has roots in the Fifth Amendment. See Wright v. Union Central Life Ins. Co., 311 U.S. 273, 61 S.Ct. 196, 85 L.Ed. 184 (1940); In re Johnson, 63 B.R. 550, 551 (Bankr.D.Colo.1986). See also United States v. Security Industrial Bank, 459 U.S. 70, 103 S.Ct. 407, 74 L.Ed.2d 235 (1982). Thus, the Court must reject any interpretation of section 1326(a) that prohibits pre-confirmation adequate protection payments." }, { "docid": "9971827", "title": "", "text": "interest in the equity of the estate if all the creditors can be paid in full, or if each class of impaired claims accepts the plan in accordance with 11 U.S.C. § 1129(a)(8)(A), so that the debtor may retain an equity interest. In such case, the Chapter 11 debtor possesses a direct pecuniary interest in the estate which would not implicate the rights of the Chapter 11 trustee, whose primary function is to protect the creditors’ interests in the estate. Even in liquidation cases under Chapter 7, a debtor has standing to object to claims where disallowance of the claims would produce a surplus. See In re Silverman, 10 B.R. 734, 735 (Bankr.S.D.N.Y.1981), affirmed 37 B.R. 200 (S.D.N.Y.1982). Moreover, it has been held that a debtor may not maintain a suit against a creditor to determine the nature, validity, extent and priority of liens or security interests asserted by the creditor if the trustee did not participate. Vreugdenhil v. Hoekstra, 773 F.2d 213, 216 (8th Cir.1985). In the instant case, not only will the Chapter 11 trustee participate, but he supports the McCorhill debt- or’s standing to counterclaim against KTO. The Chapter 11 trustee points out that his affirmative defenses are intended to reduce KTO’s claim, with the result that the creditors might benefit. However, it is not the Chapter 11 trustee’s primary function to produce an equity for the debtor. Indeed, the Chapter 11 trustee’s answer does not seek any affirmative damages from KTO, whereas McCorhill’s answer contains counterclaims which seek to create an equity for the debtor. The debtor should be permitted to protect its equity interests, if any. However, the creditors of this estate should not be required to shoulder any of the expenses of the debtor’s participation in this litigation. The Chapter 11 trustee is solely empowered to represent their interests, without duplicating costs being incurred because the debtor has chosen to retain counsel to represent its equity interests. Therefore, the debtor’s counsel must look beyond this estate for compensation unless the debtor’s efforts succeed in producing an equity for the debtor, which may serve as" } ]

[ { "docid": "13096772", "title": "", "text": "a writ of mandamus based on a district judge’s refusal to re-cuse himself requires that we consider both the standard for issuance of the writ and the standard for review of the recusal decision itself. See In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir.1988), cert. denied, 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989). “[I]t is well-settled that the exceptional remedy of mandamus will only be invoked where the petitioner has demon strated that its right to such relief is ‘clear and indisputable.’ ” Id. (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 18, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)) (emphasis omitted). The district judge has discretion “in the first instance to determine whether to disqualify himself.” Id. We will overturn the court’s determination in that regard only if it constitutes an abuse of discretion. Id. The recusal decision requires that the district court “carefully weigh the policy of promoting public confidence in the judiciary against the possibility that those questioning his impartiality might be seeking to avoid” the adverse consequences of his expected adverse decisions. Id. In order for us to issue the writ, the petitioner therefore “must ‘clearly and indisputably’ demonstrate that the district court abused its discretion. Absent such a showing, mandamus will not lie.” Id. at 1312-13. II. Whether the District Judge Abused His Discretion By Refusing To Re-cuse Himself A judge must recuse himself “in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). “[T]his test deals exclusively with appearances. Its purpose is the protection of the public’s confidence in the impartiality of the judiciary.” United States v. Amico, 486 F.3d 764, 775 (2d Cir.2007). In applying this test, we consider the petitioner’s allegations of bias as well as the judge’s “rulings on and conduct regarding them,” id., and ask whether “an objective, disinterested observer[,] fully informed of the underlying facts, [would] entertain significant doubt that justice would be done absent recusal,” id. (quoting United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir.1992)) (internal quotation marks omitted)." } ]

[ { "docid": "15146761", "title": "", "text": "pursuant to Fed.R.Civ.P. 54(b), the order is not a final decision within the meaning of 28 U.S.C. § 1291 and therefore nonappealable unless of a type permitted interlocutory review by statute. McNally v. Pulitzer Publishing Co., 523 F.2d 69 (8th Cir. 1976); Lane v. Graves, 518 F.2d 965 (8th Cir. 1975); Wooten v. First National Bank, 490 F.2d 1275 (8th Cir. 1974). The only possible source of jurisdiction here is 28 U.S.C. § 1292(a)(1), which extends appellate jurisdiction to “[ijnterlocutory orders of the district courts * * * granting, * * * refusing or dissolving injunctions * * It is true that plaintiffs are seeking injunctive relief. However, where an order dismisses fewer than all plaintiffs or defendants, the test to de termine whether that order is one granting or denying injunctive relief is essentially whether the order contracts the scope of the injunctive relief originally sought. Build of Buffalo, Inc. v. Sedita, 441 F.2d 284, 287 (2d Cir. 1971); Yaffe v. Powers, 454 F.2d 1362, 1364-1365 (1st Cir. 1972). Whatever the merits of an argument that as to Bullock and Brisson the scope of injunctive relief has been contracted, it is clear that as to appellant Scarrella the full measure of injunctive relief sought is still available. Therefore, her appeal must be dismissed. Finally, we note that appellant Scarrella complains of the failure of the district judge to disqualify himself. A determination by a district judge not to disqualify himself is reviewable by appeal only from a final judgment in the cause in which the motion for disqualification was filed. Dubnoff v. Goldstein, 385 F.2d 717 (2d Cir. 1967); Albert v. U. S. District Court for the W.D. of Michigan, 283 F.2d 61 (6th Cir. 1960), cert. denied, 365 U.S. 828, 81 S.Ct. 713, 5 L.Ed.2d 706 (1961). However, we have held that such a determination is reviewable by a petition for a writ of mandamus, and we treat Scarrella’s allegation on appeal as such a petition. Pfizer, Inc. v. Lord, 456 F.2d 532 (8th Cir.), cert. denied, 406 U.S. 976, 92 S.Ct. 2411, 32 L.Ed.2d 676 (1972). Scarrella" }, { "docid": "3378101", "title": "", "text": "before the bankruptcy judge, they have no standing to appeal the bankruptcy court’s resolution of the matter. Surety Creditors contend they are entitled to mandamus relief compelling the bankruptcy court to exercise jurisdiction over debtor’s motion to reconsider the January order. They contend the bankruptcy court abused its discretion in refusing to reconsider the January order. Surety Creditors have not filed an application for a writ of mandamus. See F.R.A.P 21. “The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.” Allied Chemical Corp. v. Daiflon Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980). The party seeking issuance of a writ of mandamus to compel a court to exercise jurisdiction when it is the court’s duty to do so, has the burden of showing it has a “clear and undisputable” right to issuance, by demonstrating a “clear abuse of discretion”. Mallard v. United States Dist. Court, 490 U.S. 296, 309, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989); In re Dalton, 733 F.2d 710, 716 (10th Cir.1984), cert. dism'd, 469 U.S. 1185, 105 S.Ct. 947, 83 L.Ed.2d 959 (1985) (establishing five noncon-clusive guidelines for determining the propriety of granting the writ). In the case before us, we do not reach whether we have authority to treat Surety Creditors’ contention as an application for a writ of mandamus, because they do not even make a threshold showing of their right to issuance of a writ. Cf. In re Kaiser Steel Corp., 911 F.2d 380 (10th Cir.1990) (authority to treat a petition for permission to appeal as a petition for mandamus). Surety Creditors did not file, or join in, the motion to reconsider the January order. As noted above, they do not have standing to appeal the election of the trustee where they are not a party aggrieved, because they did not attend the hearing or file an objection. Having failed to assert their interest at any appropriate phase in the bankruptcy court, they now seek extraordinary relief from this court. We decline to entertain their desire for mandamus relief.. The extraordinary" }, { "docid": "18884241", "title": "", "text": "950, 953 (10th Cir.1989); Homa Ltd. v. Stone (In re Commercial Contractors, Inc.), 771 F.2d 1373, 1375 (10th Cir.1985); First Bank v. Albuquerque Nat’l Bank (In re Glover, Inc.), 697 F.2d 907, 909-10 (10th Cir.1983). APPEAL DISMISSED. The mandate shall issue forthwith. . Likewise, when the district court, acting in its original jurisdiction, grants or denies a petition for a writ of mandamus or prohibition directed to the bankruptcy court, an interlocutory appeal to this court normally is unavailable. Kaiser Steel, 911 F.2d 380, 386-87 (10th Cir.1990); Magic Circle Energy 1981-A Drilling Program (In re Magic Circle Energy Corp.), 889 F.2d 950, 953-54 (10th Cir.1989). . Even if we construed this appeal as a petition for a writ of mandamus, the debtors have not met this difficult standard and would not be entitled to relief under the nonconclusive guidelines for issuance of the writ contained in Dalton v. United States (In re Dalton), 733 F.2d 710, 717 (10th Cir.1984), cert. dismissed, 469 U.S. 1185, 105 S.Ct. 947, 83 L.Ed.2d 959 (1985). See Kaiser Steel, 911 F.2d 380, 387 (construing request for appellate review as a petition for writ of mandamus and relying upon Dalton guidelines). The district court’s denial of the stay is anchored in factual determinations made by the bankruptcy court; it cannot be said that the district court abused its discretion and that the debtors’ right to relief is clear and indisputable." }, { "docid": "10976737", "title": "", "text": "the trustee’s actions are reviewable upon appeal, and that the Debtors’ allegation of lack of good cause, even if true, was therefore not sufficient to show a substantial threat of irreparable injury. II. Jurisdiction. We begin by noting that we lack jurisdiction over an appeal from the Order Denying Stay. The court of appeals exercises jurisdiction of “appeals from all final decisions, judgments, orders, and decrees” of the district courts in bankruptcy matters. 28 U.S.C. § 158(d). Because the Order Denying Stay was not a final order, we lack jurisdiction of the appeal. See National Bank of Commerce v. Barrier (In re Barrier), 776 F.2d 1298 (5th Cir.1985). Additionally, we cannot review the Order Denying Stay pursuant to 28 U.S.C. § 1292, governing interlocutory appeals, because the bankruptcy appellate scheme embedded in 28 U.S.C. § 158 clearly supersedes 28 U.S.C. § 1291, and, by inference, also supersedes section 1292. See Barrier, 776 F.2d at 1299. Under this court’s decision in Barrier, mandamus is the only remedy available to the Debtors seeking relief from the Order Denying Stay. Our decision in In re First South Savings Association, 820 F.2d 700, 707 (5th Cir.1987), sets forth the standard that we apply in considering applications for mandamus: “[w]hen a matter is entrusted to the discretion of the district court, mandamus will not issue absent a clear abuse of discretion amounting to a judicial usurpation of power.” Treating the Debtors’ notice of appeal and motion for stay of the Disgorgement Order as an application for a writ of mandamus directing the district court to enter a stay of the Disgorgement Order, we deny the application. Cf. Ramirez v. Rivera-Dueno, 861 F.2d 328, 334 (1st Cir.1988) (“While the district court’s order is, therefore, not ap-pealable, we exercise our discretion to treat defendants’ appeal as a petition for mandamus under the All Writs Act.”), cert. denied, sub nom. Quinones v. Lema-Moya, — U.S. -, 110 S.Ct. 73, 107 L.Ed.2d 40 (1989); In re Allen, 896 F.2d 416 (9th Cir. 1990) (“We may construe an appeal [from a nonfinal or appealable bankruptcy court order] as a petition" }, { "docid": "6510342", "title": "", "text": "And it is self-evident that in discussing “legal questions of first impression or of ‘extraordinary significance,’ ” the Xerox Corp. opinion was referring only to the standards for certifying a case for appeal pursuant to 28 U.S.C. § 1292(b). In short, Xerox Corp. provides no support for an assertion of jurisdiction in the instant matter, and nothing in Socialist Workers holds otherwise. We thus reaffirm our long-stated view that Cohen does not provide jurisdiction to review interlocutory discovery orders. Because Judge Broderick refused to certify an appeal from the challenged order pursuant to 28 U.S.C. § 1292(b), we have no jurisdiction over this appeal and grant Chase’s motion to dismiss. B. Review By Mandamus We have in the past treated appeals dismissed for lack of jurisdiction as petitions for a writ of mandamus. See Caribbean Trading & Fidelity Corp. v. Nigerian Nat’l Petroleum Corp., 948 F.2d 111, 115 (2d Cir.1991), petition for cert. filed, — U.S. -, 112 S.Ct. 1941, 118 L.Ed.2d 547 (1992); Richardson Greenshields Sec., Inc. v. Mui-Hin Lau, 825 F.2d 647, 652 (2d Cir.1987). Unlike other circuits, we have rarely used the extraordinary writ of mandamus to overturn a discovery order involving a claim of privilege. See In re Weisman, 835 F.2d 23, 26 n. 3 (2d Cir.1987); see also 16 C. Wright, A. Miller & E. Cooper et al., Federal Practice and Procedure § 3935, at n. 20 (1977 & Supp. 1991) (citing cases that used mandamus to review claims of privilege). Such a use of the writ is not, however, without precedent. See In re von Bulow, 828 F.2d 94 (2d Cir.1987). The issue there, stated in somewhat simplified terms, was whether publication of an attorney-authored book that disclosed portions of privileged discussions between the attorney and his client constituted a waiver of the privilege. In holding that it did, the district court had extended the so-called fairness doctrine, which allows a litigant discovery of the entirety of an otherwise privileged communication when the adversary discloses only a portion, to disclosures not made in the course of litigation. This doctrinal extension raised a legal issue" }, { "docid": "3378100", "title": "", "text": "F.2d 151, 154-55 & n. 6 (1st Cir.1987). Thus, the debtor does not have standing to appeal the election of a Chapter 7 trustee. Troy Plastics v. North Hills II, 129 B.R. 473, 475 (E.D.Mich.1991). Surety Creditors’ lack of standing results from their nonparticipation in the resolution of the disputed election. “Prerequisites for being a ‘person aggrieved’ are attendance and objection at a bankruptcy court proceeding.” Matter of Schultz Mfg. Fabricating Co., 956 F.2d 686, 690 (7th Cir. 1992) (citing In re Commercial W. Fin. Corp., 761 F.2d 1329, 1334-35 (9th Cir.1985)), petition for cert filed, (U.S. June 29, 1992) (No. 92-5205). Surety Creditors did not file an objection or response to the motion to resolve the disputed election. They did not appear at the hearing set to resolve the debtor’s objections. They received the copy of the December order and chose not to appeal it. They did not even file a timely joinder to Debtor’s appeal of the January order. In short, having chosen not to participate in the resolution of the disputed election before the bankruptcy judge, they have no standing to appeal the bankruptcy court’s resolution of the matter. Surety Creditors contend they are entitled to mandamus relief compelling the bankruptcy court to exercise jurisdiction over debtor’s motion to reconsider the January order. They contend the bankruptcy court abused its discretion in refusing to reconsider the January order. Surety Creditors have not filed an application for a writ of mandamus. See F.R.A.P 21. “The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.” Allied Chemical Corp. v. Daiflon Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980). The party seeking issuance of a writ of mandamus to compel a court to exercise jurisdiction when it is the court’s duty to do so, has the burden of showing it has a “clear and undisputable” right to issuance, by demonstrating a “clear abuse of discretion”. Mallard v. United States Dist. Court, 490 U.S. 296, 309, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989); In re Dalton, 733 F.2d 710, 716" }, { "docid": "7248762", "title": "", "text": "unreviewable harm here because Judge Preska’s order does not have the breadth the Congo attributes to it. Her order requires the Congo to “either 1) pay into the Court ... the amount of $450,000, or 2) post a bond in a form acceptable to plaintiffs counsel in the amount of $450,000 as security for the costs, including attorneys’ fees, that Kensington has incurred and likely will incur in obtaining judgment in this action.” The Congo suggests that it has been “ordered to transfer into the jurisdiction $450,000 from its treasury,” but Judge Preska’s order requires no such thing. It requires only that the Congo produce $450,000 in security. United States v. Jaffe, 417 F.3d 259, 266 (2d Cir.2005) (stating that a restitution order in an amount which would compel the defendant to sell his home was not beyond the district court’s authority, as the restitution order did not require payment from any specific asset). It simply places the burden upon the Congo to put up assets as security or come forward with some reason for noncompliance. The Congo’s reason may be that it has no assets in the United States used for commercial purposes, and Judge Preska may be satisfied with that answer and not sanction the Congo. On its face, therefore, the order does not purport to reach beyond the FSIA limitations. Moreover, Kensington’s brief and representations at oral argument make clear that it does not and will not advance such an interpretation. There is thus no harm unreviewable on appeal from final judgment sufficient to distinguish this case from Caribbean Trading. We therefore dismiss the Congo’s appeal for lack of jurisdiction. b) Construing appeal as a petition for a writ of mandamus We may treat appeals dismissed for lack of jurisdiction as petitions for a writ of mandamus. Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 F.2d 159, 163 (2d Cir.1992); Caribbean Trading, 948 F.2d at 115. In doing so, we generally must give the district judge notice and an opportunity to respond. Fed. R.App. P. 21(b). However, notice is unnecessary here because the inappropriateness of" }, { "docid": "23350290", "title": "", "text": "motion outside of his presence. We conclude, however, that we lack jurisdiction to consider any of these arguments because the district court’s order was not final under 28 U.S.C. § 1291. The district court made it clear that the denial of Thompson’s Rule 41(g) motion was without prejudice and he was free to refile it; “[a] dismissal without prejudice is normally nonfinal because the plaintiff remains free to refile his case.” Mostly Memories, Inc. v. For Your Ease Only, Inc., 526 F.3d 1093, 1097 (7th Cir.2008). While “[i]n some instances ... a dismissal without prejudice may effectively end the litigation and thus constitute a final order for purposes of appellate review,” id, this is not one of those cases. The district judge indicated that the Rule 41(g) motion was premature and she wanted to wait until Thompson’s merits appeal was resolved before addressing the substance of the motion. The judge said she would “promptly decide” a new motion after Thompson’s merits appeal was decided. Accordingly, the court’s order was nonfinal and we lack jurisdiction over Thompson’s appeal. Thompson also maintains, however, that the district judge should have recused herself based on an appearance of bias. It is somewhat unclear from the record whether Thompson ever made this request in the district court; Thompson’s filings suggest that he raised the issue of bias and the court’s decision briefly addressed the issue. In denying Thompson’s Rule 41(g) motion as premature, the judge commented: “There is no basis for recusal and if [Thompson’s] suggestion [of bias] is intended as a motion, it is denied.” A challenge to a district court’s refusal to recuse may only be made by a petition for a writ of mandamus. Tezak v. United States, 256 F.3d 702, 717 n. 16 (7th Cir.2001). Although Thompson did not style his appeal as one seeking mandamus relief, we have previously said that an appeal of a denial of recusal should be construed as a petition for mandamus relief. United States v. City of Chicago, 870 F.2d 1256, 1259 (7th Cir.1989). Therefore, we will treat Thompson’s appeal as a petition for mandamus." }, { "docid": "7248763", "title": "", "text": "noncompliance. The Congo’s reason may be that it has no assets in the United States used for commercial purposes, and Judge Preska may be satisfied with that answer and not sanction the Congo. On its face, therefore, the order does not purport to reach beyond the FSIA limitations. Moreover, Kensington’s brief and representations at oral argument make clear that it does not and will not advance such an interpretation. There is thus no harm unreviewable on appeal from final judgment sufficient to distinguish this case from Caribbean Trading. We therefore dismiss the Congo’s appeal for lack of jurisdiction. b) Construing appeal as a petition for a writ of mandamus We may treat appeals dismissed for lack of jurisdiction as petitions for a writ of mandamus. Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 F.2d 159, 163 (2d Cir.1992); Caribbean Trading, 948 F.2d at 115. In doing so, we generally must give the district judge notice and an opportunity to respond. Fed. R.App. P. 21(b). However, notice is unnecessary here because the inappropriateness of mandamus relief is clear on the face of the record. The “touchstones” for an exercise of the mandamus power are a showing of “usurpation of power, clear abuse of discretion and the presence of an issue of first impression,” see In re von Bulow, 828 F.2d 94, 97 (2d Cir.1987) (internal quotation marks and citation omitted), and the Congo falls woefully short of meeting that standard. The Congo points out that we have held that a pre-judgment security order is indistinguishable from an order of attachment. See Stephens v. Nat’l Distillers & Chem. Corp., 69 F.3d 1226, 1229-30 (2d Cir.1995). The Congo farther argues that the FSIA provides that the property of foreign states is immune from “attachment[,] arrest[,] and execution.” 29 U.S.C. § 1609. We, of course, agree with both of these points. Section 1609, however, explicitly provides for exceptions. See id. (“[T]he property of a foreign state shall be immune from attachment arrest and execution except as provided in sections 1610 and 1611 of this chapter.” (emphasis added)). One such exception is found" }, { "docid": "1532482", "title": "", "text": "appellate court for a writ of mandamus. See Paramount Pictures v. Rodney, 186 F.2d 111 (3d Cir.), cert. denied, 340 U.S. 953, 71 S.Ct. 572, 95 L.Ed. 687 (1951). It was quite clear, however, that absent certification from the district court under section 1292(b) and absent a petition for a writ of mandamus (or the equivalent of such a petition), the transferor appellate court could not review denials of motions for transfer or denial of motions to dismiss for forum non conveniens. See Compagnie Des Bauxites De Guinea v. Insurance Company of North America, 651 F.2d 877, 888 (3d Cir.1981) (denial of forum non conveniens motion not appealable under 28 U.S.C. § 1291 or 28 U.S.C. § 1292); Wallace v. Norman Industries, Inc., 467 F.2d 824 (5th Cir.1972); Kasey v. Molybdenum Corp. of America, 408 F.2d 16 (9th Cir.1969) (denial of motion under section 1404(a) not appealable); Republic of Iraq v. First National City Bank, 313 F.2d 194 (2d Cir.1963). Thus, under the traditional view, at least as we have sketched it here, the order transferring venue would not be one over which we have appellate jurisdiction; at best, we could treat the appeal as a petition for a writ of mandamus, and apply the stringent standard of review applicable to requests for that writ. See Gold v. Johns-Manville Sales Corp., 723 F.2d 1068 (3d Cir.1983). III. It is submitted by the appellant, however, that this court’s opinion in Coastal Steel altered the traditional law on the subject, or at least carved out an exception where the basis of a proposed transfer or dismissal was a forum selection clause in a contract underlying the dispute. There is indeed much to be said in support of this view. Coastal Steel involved an appeal from a district court order affirming an order of a bankruptcy court denying a forum non conveniens motion to dismiss the case on grounds that the contract underlying the dispute required controversies to be adjudicated in the courts of Great Britain. As we have suggested, under the view set out only two years earlier in Compagnie Des Bauxites" }, { "docid": "18606842", "title": "", "text": "Bank’s appeal. Mandamus Although we do not have jurisdiction over the Bank’s attempted appeal as a matter of right from the non-final bar order, we may in appropriate circumstances treat an unsuccessful attempt to appeal as a petition for a writ of mandamus. See, e.g., Richardson Greenshields Securities, Inc., 825 F.2d at 652. Indeed, the Bank has asked us to review the bar order under our mandamus power if we should find ourselves to be without statutory appellate jurisdiction. The Bank claims that the bar order threatens its seventh amendment right to a trial by jury in the adversary proceeding, and there is a clear line of cases holding that when an otherwise unappealable order denies a claimed right to a jury trial, immediate review may be obtained by way of a petition for mandamus. See, e.g., Dairy Queen, Inc. v. Wood, 369 U.S. 469, 472, 82 S.Ct. 894, 897, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 511, 79 S.Ct. 948, 957, 3 L.Ed.2d 988 (1959); Higgins v. Boeing Co., 526 F.2d 1004, 1006 (2d Cir.1975) (per curiam). We see no reason not to follow this practice in the bankruptcy context. See Kaiser Steel Corp. v. Frates (In re Kaiser Steel Corp.), 911 F.2d 380, 387-88 (10th Cir.1990). Though we believe that mandamus should be used sparingly, it is justified in this case. We therefore treat the Bank’s appeal as a petition for a writ of mandamus and turn to the merits of its claim. Merits In an action to recover a monetary preference or fraudulent conveyance (collectively “preference”), the seventh amendment right to a jury trial depends on whether the person against whom the action is brought has submitted a claim against the bankruptcy estate. Langenkamp v. Culp, — U.S.-, 111 S.Ct. 330, 331, 112 L.Ed.2d 343 (1990) (per curiam). As the Supreme Court has explained, by filing a claim against the estate a creditor triggers the process of allowance and disal-lowance of claims, and the Debtors’ preference action against the creditor becomes part of the claims-allowance process. This process is integral to the" }, { "docid": "7273072", "title": "", "text": "from the court’s order that the petition was validly filed, however, is premature. If a debtor’s creditors are adversely affected by an automatic stay, they can petition for protection under § 362(d)(1) and a denial by the bankruptcy court is deemed final. Crocker Nat’l Bank v. American Mariner Indust., Inc. (In re American Mariner Indust., Inc.), 734 F.2d 426, 428-29 (9th Cir.1984). Likewise, if and when a trustee begins to exercise his or her powers under § 547(b), a debtor can protest. Because we find that no substantial interference with the Allens’ property rights could result from the bankruptcy court’s finding that a valid involuntary petition was filed against Kenneth C. Allen as an individual, the bankruptcy’s court order is not final and we are without jurisdiction to review it. Cf. Burchinal v. Central Washington Bank (In re Adams Apple, Inc.), 829 F.2d 1484, 1487 (9th Cir.1987) (order authorizing lender to contract with debtor to subordinate the claims of other creditors to property of the debtor is final because it disposes of the debtor’s property rights). A conclusion that the bankruptcy court’s order is not final and appealable to this court does not end all inquiry. We may construe an appeal as a petition for a writ of mandamus. 28 U.S.C. § 1651(a) (1982) (“... all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”); see Unified Sewerage Agency v. Jelco, Inc., 646 F.2d 1339, 1343 (9th Cir.1981) (court can treat appeal as a petition for mandamus sua sponte). We consider five guidelines when determining whether to issue a writ of mandamus: (1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires. (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal. (3) The district court’s order is clearly erroneous as a matter of law. (4) The district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal" }, { "docid": "6510341", "title": "", "text": "States Steel Corp., 492 F.2d 1074, 1077 (2d Cir.1974), on the part of the district court, no jurisdictional basis exists for interlocutory review of pretrial discovery orders____ No such showing is made here and Judge Newman understandably refused to certify his rulings for appeal pursuant to 28 U.S.C. § 1292(b). This case does not present legal questions of first impression or of “extraordinary significance.” ... It is further settled that the exception created by Cohen ... to. the finality requirement cannot be employed to obtain interlocutory review of discovery orders. 534 F.2d at 1031-32 (some citations omitted). The cited portions of both Will v. United States, 389 U.S. at 96, 88 S.Ct. at 274, and Baker v. United States Steel Corp., 492 F.2d at 1077, are discussions of standards governing issuance of writs of mandamus. Thus, while Xerox Corp. refers to a “manifest abuse of discretion” and a “persistent disregard of the Rules of Civil Procedure” as predicates to appellate court review, the review contemplated was pursuant to a petition for a writ of mandamus. And it is self-evident that in discussing “legal questions of first impression or of ‘extraordinary significance,’ ” the Xerox Corp. opinion was referring only to the standards for certifying a case for appeal pursuant to 28 U.S.C. § 1292(b). In short, Xerox Corp. provides no support for an assertion of jurisdiction in the instant matter, and nothing in Socialist Workers holds otherwise. We thus reaffirm our long-stated view that Cohen does not provide jurisdiction to review interlocutory discovery orders. Because Judge Broderick refused to certify an appeal from the challenged order pursuant to 28 U.S.C. § 1292(b), we have no jurisdiction over this appeal and grant Chase’s motion to dismiss. B. Review By Mandamus We have in the past treated appeals dismissed for lack of jurisdiction as petitions for a writ of mandamus. See Caribbean Trading & Fidelity Corp. v. Nigerian Nat’l Petroleum Corp., 948 F.2d 111, 115 (2d Cir.1991), petition for cert. filed, — U.S. -, 112 S.Ct. 1941, 118 L.Ed.2d 547 (1992); Richardson Greenshields Sec., Inc. v. Mui-Hin Lau, 825 F.2d 647, 652" }, { "docid": "15247492", "title": "", "text": "jurisdiction pursuant to 28 U.S.C. §§ 1291-1292, jurisdiction may exist under 28 U.S.C. § 1651(a). See Miller v. Gammie, 335 F.3d 889, 895 (9th Cir.2003) (en banc) (treating notice of appeal where appellate jurisdiction was lacking as a petition for a writ of mandamus); 28 U.S.C. § 1651(a) (2000) (“[A]ll courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”). To determine whether to issue a writ of mandamus, we must consider the following five factors: (1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires. (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal. (3) The district court’s order is clearly erroneous as a matter of law. (4) The district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules. (5) The district court’s order raises new and important problems, or issues of law of first impression. Allen v. Old Nat’l Bank (In re Allen), 896 F.2d 416, 419-420 (9th Cir.1990) (citing Bauman v. United States Dist. Court, 557 F.2d 650, 654-55 (9th Cir.1977)). The District Court argues that the third factor is dispositive in this case such that our review of the District Court’s Order for clear error will determine whether we should issue a writ of mandamus. Indeed, it is well established in this Circuit that “[w]hen a district court’s decision is correct as a matter of law, a writ of mandamus should be denied.” In Re Allen, 896 F.2d at 420 (citing Rosenfeld v. United States, 859 F.2d 717, 723 (9th Cir.1988)); Survival Sys. Div. of the Whittaker Corp. v. United States Dist. Court, 825 F.2d 1416, 1418 & n. 1 (9th Cir.1987). Accordingly, we will review the District Court’s decision for clear error. STANDARD OF REVIEW In light of our conclusion that we do not have appellate jurisdiction over the District Court’s decision to deny Gallo’s request to practice generally before it," }, { "docid": "15113235", "title": "", "text": "case against them for the purpose of seeking convictions. There is no indication the Government’s claims are groundless. We conclude an interlocutory appeal does not lie from the district court’s denial of the motion to dismiss the indictment on the ground of prosecutorial vindictiveness. We therefore dismiss the appeal without expressing an opinion on the merits of defendants’ claims. 2. Motion for Disqualification and Writ of Mandamus The second question, whether an interlocutory appeal lies from the denial of a motion to disqualify the trial judge, has already been answered in the negative in a prior panel decision of this Court, by which we of course are bound. In re Corrugated Container Antitrust Litigation, 614 F.2d 958 (5th Cir. 1980), cert. denied, Mead Corporation v. Adams Extract, 449 U.S. 888, 101 S.Ct. 244, 69 L.Ed.2d 114 (1980). This type of claim was considered to be fully reviewable on appeal from a final judgment. Accord, United States v. Washington, 573 F.2d 1121 (9th Cir. 1978); Vuono v. United States, 441 F.2d 271 (4th Cir. 1971); Robinson v. Largent, 419 F.2d 1327 (3d Cir. 1970); Dubnoff v. Goldstein, 385 F.2d 717 (2d Cir. 1967). The question of disqualification is reviewable on mandamus, however, although a writ will not lie in the absence of “exceptional circumstances.” Corrugated Container, 614 F.2d at 961 n.4. The parties seeking the writ must carry the burden of proving a “clear and indisputable” right to it, and its issuance remains within the court’s discretion. Id. at 962. See also Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976); In re International Business Machines Corp., 618 F.2d 923, 926 (2d Cir. 1980). Anticipating our decision on appealability, defendants have petitioned in the alternative for a writ of mandamus ordering the trial judge’s recusal. In support of their claim of personal bias, defendants first note a comment made by the judge when he agreed to defense counsel’s request to furnish a copy of the financial disclosure statement he prepared pursuant to the Ethics in Government Act. After handing the statement over" }, { "docid": "3378102", "title": "", "text": "(10th Cir.1984), cert. dism'd, 469 U.S. 1185, 105 S.Ct. 947, 83 L.Ed.2d 959 (1985) (establishing five noncon-clusive guidelines for determining the propriety of granting the writ). In the case before us, we do not reach whether we have authority to treat Surety Creditors’ contention as an application for a writ of mandamus, because they do not even make a threshold showing of their right to issuance of a writ. Cf. In re Kaiser Steel Corp., 911 F.2d 380 (10th Cir.1990) (authority to treat a petition for permission to appeal as a petition for mandamus). Surety Creditors did not file, or join in, the motion to reconsider the January order. As noted above, they do not have standing to appeal the election of the trustee where they are not a party aggrieved, because they did not attend the hearing or file an objection. Having failed to assert their interest at any appropriate phase in the bankruptcy court, they now seek extraordinary relief from this court. We decline to entertain their desire for mandamus relief.. The extraordinary relief of a writ of mandamus is not a substitute for an appeal, and it is not a vehicle to relieve persons of the consequences of their previous decision not to pursue available procedures and remedies. In conclusion, we AFFIRM the district court’s dismissal of the appeal for lack of jurisdiction. . See Fed.R.Bankr.P. 8002(a) (ten days to file appeal). . See former Bankruptcy Rule X-l 006(b) and (c) (procedure for disputed elections), now found at Fed.R.Bankr.P. 2003. . For example, discharge of debts or exemption •of property from the estate. . In re Blesi, 43 B.R. 45 (Bankr.D.Minn.1984) involves the question of a debtor's standing to contest the election before the bankruptcy court and therefore is not authority in support of a debtor's standing to contest the election on appeal." }, { "docid": "15113236", "title": "", "text": "v. Largent, 419 F.2d 1327 (3d Cir. 1970); Dubnoff v. Goldstein, 385 F.2d 717 (2d Cir. 1967). The question of disqualification is reviewable on mandamus, however, although a writ will not lie in the absence of “exceptional circumstances.” Corrugated Container, 614 F.2d at 961 n.4. The parties seeking the writ must carry the burden of proving a “clear and indisputable” right to it, and its issuance remains within the court’s discretion. Id. at 962. See also Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976); In re International Business Machines Corp., 618 F.2d 923, 926 (2d Cir. 1980). Anticipating our decision on appealability, defendants have petitioned in the alternative for a writ of mandamus ordering the trial judge’s recusal. In support of their claim of personal bias, defendants first note a comment made by the judge when he agreed to defense counsel’s request to furnish a copy of the financial disclosure statement he prepared pursuant to the Ethics in Government Act. After handing the statement over to counsel, the judge remarked, “It’s going to give you a world of information about my background and I hope you choke on it.” Defendants next offer a statement made by the judge in one of six earlier civil suits brought by the Federal Deposit Insurance Corporation against the Gregorys in connection with certain loan transactions. The judge had presided over all six suits. In one of his opinions, the judge characterized the loan involved as “virtually a self-dealing transaction.” Defendants contend this statement was “clearly erroneous” and prejudices the judge with respect to the factual issues in the present case. Defendants finally direct our attention to two temporary “gag orders” which restricted defendants’ access to the media and to discovery materials. They contend these orders were made in “blatant disregard” of statutory and constitutional law. In his opinion denying the motion to disqualify, the trial judge explained his “choke on it” comment was due to a strong dislike for disclosing his personal finances as well as part of the interplay between judge and counsel" }, { "docid": "16469403", "title": "", "text": "court could grant a writ of mandamus under its original jurisdiction in bankruptcy, we hold that such a course is merged into the statutory power to withdraw the reference. Cf. Allied Chem., 449 U.S. at 35, 101 S.Ct. at 190 (mandamus not available where other remedy exists). Accordingly, we lack appellate jurisdiction under either sections 158(d) or 1291 tq review the district court’s order even if we construe it as denying a petition for a writ of mandamus. We undertake a different analysis with respect to the Frates defendants’ motions to withdraw the reference. Unlike either the interlocutory appeal under section 158(a) or a writ of mandamus, the motion to withdraw the reference is clearly an interlocutory proceeding addressed to the district court’s original jurisdiction in bankruptcy. As such, it is reviewable under section 1292(b). See 1 Collier on Bankruptcy 113.01[e], at 3-64 & n. 113; cf. Bokum Resources Corp., 818 F.2d at 1524 (reviewing district court’s original jurisdiction action under § 1291); Dalton v. United States (In re Dalton), 733 F.2d 710, 714-15 (10th Cir.1984) (motion to withdraw reference interlocutory in nature but certifiable under § 1292(b)). After examining the district court’s memorandum opinion, however, we decline to construe the order as ruling on the motion to withdraw the reference. It is clear that the district court reviewed the bankruptcy court’s order under an appellate standard of review. The district court did not purport to reach a decision under its original bankruptcy jurisdiction. Because we find that the district court did not rule on the motion to withdraw the reference, we decline the invitation to exercise appellate jurisdiction on that basis. In summary, we find no basis for exercising appellate jurisdiction under sections 158(d), 1291 or 1292(b) in this case; consequently, the appeal must be dismissed. B. The Frates defendants in their supplemental briefs requested that we construe their request for appellate review as a petition for a writ of mandamus. We have authority to treat a petition for permission to appeal as a petition for a writ of mandamus, State Farm Mutual Auto. Ins. Co. v. Scholes, 601" }, { "docid": "18884240", "title": "", "text": "requirement that the movant’s right to relief be “clear and indisputable,” see Mallard v. United States Dist. Ct., 490 U.S. 296, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989); Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35-36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (per curiam); Kaiser Steel, 911 F.2d 380, 387-88; Dalton v. United States (In re Dalton), 733 F.2d 710, 715-18 (10th Cir.1984), cert. dismissed, 469 U.S. 1185, 105 S.Ct. 947, 83 L.Ed.2d 959 (1985), under the All Writs Act, 28 U.S.C. § 1651(a). See Topco, 894 F.2d at 736 n. 12; First South, 820 F.2d at 708-09; Barrier, 776 F.2d at 1299; Teleport, 759 F.2d at 1378. Our determination that we lack jurisdiction in these circumstances is consistent with this circuit’s traditional, rather than more flexible, approach to finality, even in the bankruptcy context. See Kaiser Steel, 911 F.2d 380, 386-87; State Bank v. Anderson (In re Bucyrus Grain Co.), 905 F.2d 1362, 1365-66 (10th Cir.1990); Magic Circle Energy 1981-A Drilling Program (In re Magic Circle Energy Corp.), 889 F.2d 950, 953 (10th Cir.1989); Homa Ltd. v. Stone (In re Commercial Contractors, Inc.), 771 F.2d 1373, 1375 (10th Cir.1985); First Bank v. Albuquerque Nat’l Bank (In re Glover, Inc.), 697 F.2d 907, 909-10 (10th Cir.1983). APPEAL DISMISSED. The mandate shall issue forthwith. . Likewise, when the district court, acting in its original jurisdiction, grants or denies a petition for a writ of mandamus or prohibition directed to the bankruptcy court, an interlocutory appeal to this court normally is unavailable. Kaiser Steel, 911 F.2d 380, 386-87 (10th Cir.1990); Magic Circle Energy 1981-A Drilling Program (In re Magic Circle Energy Corp.), 889 F.2d 950, 953-54 (10th Cir.1989). . Even if we construed this appeal as a petition for a writ of mandamus, the debtors have not met this difficult standard and would not be entitled to relief under the nonconclusive guidelines for issuance of the writ contained in Dalton v. United States (In re Dalton), 733 F.2d 710, 717 (10th Cir.1984), cert. dismissed, 469 U.S. 1185, 105 S.Ct. 947, 83 L.Ed.2d 959 (1985). See Kaiser Steel, 911" }, { "docid": "12548185", "title": "", "text": "appealed from the order postponing resolution of his motion to dismiss, case No. 91-1067. Jordan, Worden, Miller, and Weld County appealed from the subsequent oral order postponing resolution of Jordan, Worden, and Miller’s motion to dismiss, case No. 91-1132. After we questioned our jurisdiction over case No. 91-1067, Jordan, Dill, and Worden commenced an original proceeding in the nature of mandamus to compel the respondent district court judge to consider and decide their pending motions to dismiss based on qualified immunity, case No. 91-1151. I. Mandamus is used to compel a lower court to exercise its jurisdiction when it has a duty to do so. Mallard v. United States Dist. Court, 490 U.S. 296, 308, 109 S.Ct. 1814, 1821, 104 L.Ed.2d 318 (1989). Mandamus is a drastic remedy which is to be invoked only in extraordinary situations. A petitioner must demonstrate a clear abuse of discretion or conduct amounting to usurpation of judicial power; that petitioner lacks an adequate alternative means to obtain the relief he or she seeks; and that the right to issuance of the writ is clear and indisputable. Id. at 309, 109 S.Ct. at 1822. “[Mjandamus cannot be used as a substitute for appeal.” United States v. Taylor, 798 F.2d 1337, 1341 (10th Cir.1986). The availability of review by interlocutory appeal “necessarily decreases the availability of the extraordinary writ [of mandamus].” See Kaiser Steel Corp. v. Frates (In re Kaiser Steel Corp.), 911 F.2d 380, 386 (10th Cir.1990). We therefore first address whether defendants have a remedy by appeal. Courts of appeals have jurisdiction over appeals from final district court decisions pursuant to 28 U.S.C. § 1291. A nonfinal district court decision is also appealable under this section if it “finally determine[s] claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). A major characteristic of an order appealable" } ]

[ { "docid": "2960253", "title": "", "text": "PER CURIAM: The taxpayer appeals from a judgment of the district court rejecting its claim for refund of $51,946.29 in interest on deficiencies in the payment of accumulated earnings tax imposed under section 531 of the Internal Revenue Code of 1954 in respect of the taxable years 1956 through 1959. The district court held, in accordance with the Government’s contention, that interest on the deficiencies accrued from the due date of the taxpayer’s federal returns, following the general rule prescribed by section 6601(a) of the 1954 Code. It rejected the taxpayer’s argu ment that interest accrued from the date upon which the Internal Revenue Service sent the taxpayer formal notice and demand for payment of the accumulated earnings tax because the tax imposed by section 531 is a “penalty, additional amount, or addition to the tax” within the meaning of section 6601(f) (3) of the 1954 Code. After the district court decided this case, the opinions came down in Motor Fuel Carriers, Inc. v. United States (1970) 420 F.2d 702, 190 Ct.Cl. 385 and Ray E. Loper Lumber Co. v. United States (6th Cir. 1971) 444 F.2d 301, each of which deals with the identical problem. It is unnecessary to describe the elaborate arguments advanced in the ease at bench because their substance is fully explored in Motor Fuel Carriers, Inc., and Ray E. Loper Lumber Co. We adopt the reasoning of Motor Fuel Carriers, Inc., in support of its conclusion that section 6601(f) (3) controls. Accordingly, we hold that the taxpayer is not liable for interest on the deficiency in accumulated earnings tax which it has paid within 10 days of demand. The judgment is reversed. . The pertinent provisions of § 6601 are as follows: Sec. 6601. Interest on underpayment, nonpayment, or extensions of time for payment, of tax. (a) General rule. — If any amount of tax imposed by this title (whether required to be shown on a return, or to be paid by stamp or by some other method) is not paid on or before the last date prescribed for payment, interest on such amount at" } ]

[ { "docid": "10353131", "title": "", "text": "PeR Curiam : This case comes before the court on plaintiff’s motion, filed March 12,1973, for judgment pursuant to Pule 141(b), requesting that the court adopt the recommended decision of Trial Commissioner Lloyd Fletcher filed November 29,1972, under Pule 134(h), as modified by order of February 22,1973, defendant having withdrawn its notice of intention to except thereto. The court has considered the case without oral argument of counsel and since it agrees with the trial commissioner’s recommended decision, as hereinafter set forth, it grants plaintiff’s motion and adopts the decision as the basis for its judgment hi this case. Therefore, it is concluded that plaintiff is entitled to recover and judgment is entered for plaintiff with the amount of recovery to ■be determined pursuant to Pule 131(c) in accordance with the decision. OPINION OE COMMISSIONER Fletcher, Commissioner: This income tax refund suit requires the court, once again, to enter an area which has been aptly described (by Judge Nichols as “devoid of black-letter law, as is true of any tax inquiry seeking the ‘substance’ of a given transaction.” Jack Daniel Distillery v. United States, 180 Ct. Cl. 308, 326, 379 F. 2d 569, 580 (1967). The area is frequently referred to as the “debt-equity distinction,” and the hundreds of court decisions involving it “defy symmetry.” Tyler v. Tomlinson, 414 F. 2d 844, 847 (5th Cir. 1969). In the context of the present case, the primary question before the court is whether losses suffered by plaintiff, Bordo Products Company (Bordo), upon the failure of C. M. Pitt & Sons Company (Pitt) to repay some $740,000 loaned it by Bordo qualifies as bad debt under Section 166 of the Internal Pevenue Code. Alternatively, says Bordo, in the event these loans or advances do not meet the test of bad debt under Section 166, the advances to Pitt should be deductible as ordinary and necessary business ex penses under Section 162 or losses under Section 165(a). Defendant, on the other hand, views the advances made by Bordo to Pitt as having been made to obtain an equity interest in Pitt with an investment" }, { "docid": "21261097", "title": "", "text": "PER CURIAM: This case comes before the court, having been submitted on the briefs and oral argument of plaintiff, pro se, and defendant’s attorney, on plaintiffs exceptions to the recommended decision of Trial Judge Robert J. Yock, filed September 29, 1978, pursuant to Rule 134(h), and on plaintiffs motion, filed December 6, 1978, for an order to the defendant to produce documents. Upon consideration thereof, together with the responses and replies thereto, the court denies plaintiffs said motion to produce documents and since the court agrees with the trial judge’s recommended decision, as hereinafter set forth, it hereby affirms and adopts the decision as the basis for its judgment in this case. Accordingly, it is concluded that plaintiff is entitled to recover the sum of $570.18 in accordance with the decision entered herein on December 19, 1973 (203 Ct. Cl. 347, 488 F.2d 1394), but that plaintiff is not entitled to recover under Counts II and III of the petition. Judgment is entered for plaintiff for $570.18 with the petition otherwise dismissed. OPINION OF TRIAL JUDGE YOCK, Trial Judge: This cases arises out of a contract for the sale and removal of smokeless gunpowder owned by the United States Navy. The contract was terminated for default more than 16 years ago. In the course of the protracted litigation which has followed, numerous dis putes pertaining to the contract have been aired, several of which were resolved by this court’s Wunderlich Act review of the decision by the Armed Services Board of Contract Appeals. Petrofsky v. United States, 203 Ct. Cl. 347, 488 F.2d 1394 (1973); ASBCA No. 11863, 70-1 BCA ¶ 8272. However, the court also found it necessary to remand the case for trial on plaintiffs allegations of breach of contract contained in Counts II and III of the petition, as amended. In Count II, plaintiff basically alleges that the Navy Ammunition Depots interfered with his removal of the gunpowder from the depots. In Count III, framed in the alternative, plaintiff basically alleges that the Navy unlawfully terminated the contract without giving sufficient notice contemplated by the terms of" }, { "docid": "11811120", "title": "", "text": "formerly recognized specifically by Congress — that a taxpayer can hardly determine for itself, with any accuracy, if the tax is due, and if so to what extent. * * * [190 Ct. Cl. at 390, 420 F.2d at 705.] The same focus on the need for an administrative determination of tax liability influenced the decision of other courts in cases following Motor Fuel Carriers, see, e.g., Bardahl Mfg. Co. v. United States, 452 F.2d 605 (9th Cir. 1971); Loper Lumber Co. v. United States, 444 F.2d 301 (6th Cir. 1971). Both cases ruled that interest was not due on the accumulated earnings tax until date of notice and demand. Bardahl explicitly adopted the reasoning of Motor Fuel Carriers in support of its conclusion that § 6601(f)(3) controlled; Loper did not rule on the applicability of that statute. Rather, the Sixth Circuit reached the same result as Motor Fuel Carriers, but did so by holding that § 6601(c)(4) [redesignated § 6601(b)(4) in 1975] controlled rather than §§ 6601(a) and 6155. II The present arguments and indeed the analysis in Motor Fuel Carriers and subsequent cases focus on whether the taxpayer could self-assess and report its tax liability as determined at the time it filed its returns. Plaintiff argues that § 482 is a discretionary tool of the IRS, that the IRS may or may not use it as it sees fit, and that at the time of filing its return Morton-Norwich could not possibly have accommodated for a possibility that the IRS would declare it liable for additional tax, nor estimate the amount of tax. Given then that affirmative IRS action was necessary for the IRS to generate income tax liability, there is no authority to assess interest back to the date the return is due. Taxpayer can argue either (a) the tax is a \"penalty, additional amount, or addition to the tax” under § 6601(e)(3); (b) under § 6601(a) the last date prescribed for payment is the date of notice and demand pursuant to § 6155; or (c) as no tax is due on the date the return is" }, { "docid": "11811097", "title": "", "text": "assessment of the accumulated earnings tax until notice and demand were made. The court supported its conclusion on alternative grounds: (1) the accumulated earnings tax was an \"assessable penalty, additional amount, or addition to the tax” within the meaning of section 6601(f)(3) [now I.R.C. § 6601(e)(3)]; and (2) if the general rule of section 6601(a) did apply, the last date prescribed for payment was the date of notice and demand pursuant to section 6155. Other courts have reached the same results with respect to the accumulated earnings tax. Bardahl Mfg. Corp. v. United States, 452 F.2d 604 (9th Cir. 1971) (section 531 tax an addition to the tax or penalty (§ 6601(e)(3))); Ray E. Loper Lumber Co. v. United States, 444 F.2d 301 (6th Cir. 1971) (last date for payment of accumulated earnings tax not prescribed (§ 6601(b)(4))). The court in Motor Fuel Carriers relied on the following principal factors in determining that either the accumu lated earnings tax was an addition to the tax under section 6601(e)(3) or that the last date prescribed for payment was the date of notice and demand under sections 6155 and 6601(a). The first was that it was clear from the statute, the legislative history,. and administrative practice that the accumulated earnings tax was separate from, and in addition to, the normal corporate income tax under section 11. The statute explicitly provides that such tax is \"[i]n addition to other taxes imposed by this chapter.” I.R.C. § 531. Second, the tax was not self-assessable like normal income taxes, but assessment requires \"an administrative determination by the Service” of the fact and amount of the unreasonable accumulation of earnings and profits. Motor Fuel Carriers, Inc. v. United States, supra, 190 Ct. Cl. at 393, 420 F.2d at 707. \"There is no provision in, or part of, Treasury Form 1120 (the return form) for reporting the amount subject to this tax; nor are there any schedules or instructions for reporting the item. It is left wholly to the Government’s initiative.” Id. at 390, 420 F.2d at 705 [cite omitted]. In the court’s thinking, it was the" }, { "docid": "13308068", "title": "", "text": "We do not find it necessary to determine whether the accumulated earnings tax is a penalty, additional amount or addition to the tax within the meaning of § 6601(f) (3). Our decision is founded upon the language of § 6601(a) and (c), giving due consideration to the purpose, mode of determination and mechanics of assessment of the accumulated earnings tax. Reversed and remanded with instructions to enter judgment for the taxpayers in the amounts to which they are entitled under this opinion. APPENDIX A FINDINGS OF FACT. 1. These related actions are for the refund of interest paid by the various plaintiffs in the total amount of $272,-866.83. 2. J. Graham Brown was the principal corporate officer and principal shareholder of all four plaintiff corporations. 3. These cases were consolidated for trial and were submitted to the Court on the basis of the pleadings and stipulations filed. The admissions of the parties and the stipulations filed are incorporated herein by reference. 4. (a) The plaintiff Ray E. Loper Lumber Company, Inc., timely filed its corporate income tax returns for the years 1954 through 1960 with the District Director of Internal Revenue, Louisville, Kentucky and paid the taxes shown to be due on the face of the returns. (b) After an audit of these returns by an agent of the Internal Revenue Service, assessments were made on July 9, 1965, against the Ray E. Loper Lumber Company, Inc., for the accumulated earnings tax provided by Section 531 of the 1954 Code plus interest from the date the returns were due to the date of assessment as follows: (e) The accumulated earnings tax portion of each assessment was paid on July 1, 1965. The interest portion of each assessment was paid on April 15, 1966. Separate claims for refund for each of the years 1954 through 1960 were filed by the plaintiff on June 17, 1966. The plaintiff alleged in its claims that it was entitled to a refund of the interest that it had paid from the date the returns were due to the date of assessment. The refund claims for" }, { "docid": "21294921", "title": "", "text": "in this court under the provisions of the Uniform Relocation Act, supra. Past decisions of this court, in redwood taking cases, have clearly held that plaintiff is not entitled to recover litigation expenses for the legislative taking of its property. Rocca v. United States, 205 Ct. Cl. 275, 281-84, 500 F.2d 492, 495-97 (1974); see Kelly v. United States, 209 Ct. Cl. 706, 709 (1976); Simonson Lumber Co. v. United States, 208 Ct. Cl. 1026, 1027 (1976). Plaintiffs argument for an interpretation of the Uniform Relocation Act that would support recovery by them of litigation expenses is most unpersuasive in light of the Rocca decision, supra. CONCLUSION OF LAW Based on the opinion and findings of fact which are made a part of the judgment herein (the necessary findings of fact having been included in the report), the court concludes that the plaintiff is entitled to recover from the United States $1,464,091, together with simple interest at a rate of 6)4 percent per annum from October 2, 1968, to December 31, 1970; 7)4 percent per annum from January 1, 1971, to December 31, 1975; and 8)4 percent per annum from January 1, 1976, to December 31,1979. The rate of interest for the period from January 1,1980, to the date of payment of the judgment shall be determined by the trial judge in accordance with this opinion. The court further concludes that plaintiff is not entitled to recover reasonable litigation expenses actually incurred by plaintiff because of the proceedings in this case. Pursuant to Rule 131(c) this case is remanded to the trial division for a determination of the final amount. In accordance with the opinion of the court, a memorandum report of the trial judge and a stipulation of the parties, it was ordered on March 13,1981 that judgment for plaintiff be entered for $2,928,802.62, plus daily interest thereon of $481.34, from March 1,1981, until date of actual payment. The trial judge’s recommended decision and conclusion of law are submitted in accordance with Rule 134(h) and, as modified by the court, is set forth.\" Between April 9, 1969, and September" }, { "docid": "11811119", "title": "", "text": "§ 531 (the accumulated earnings tax). The IRS assessed interest from the due date of taxpayer’s return. The government had successfully asserted liability. On the suit for refund of the interest assessed, this court ruled for taxpayer, concluding that interest began to run on the date of notice and demand. The court’s decision was based on alternative grounds: (1) the accumulated earnings tax was an \"assessable penalty, additional amount, or addition to the tax” within the meaning of § 6601(f)(3) [the present § 6601(e)(3)]; and (2) if the general rule of § 6601(a) applied, the last date prescribed for payment was the date of notice and demand pursuant to § 6155. Plaintiff states that the theory on which these alternative grounds lie applies to the present case. The rationale for both alternatives in Motor Fuel Carriers, Inc., supra, plaintiff argues, was that there was a need for an administrative determination before taxpayer owed any accumulated earnings tax. The court stated: * * * It is inherent in the nature of the tax — and was formerly recognized specifically by Congress — that a taxpayer can hardly determine for itself, with any accuracy, if the tax is due, and if so to what extent. * * * [190 Ct. Cl. at 390, 420 F.2d at 705.] The same focus on the need for an administrative determination of tax liability influenced the decision of other courts in cases following Motor Fuel Carriers, see, e.g., Bardahl Mfg. Co. v. United States, 452 F.2d 605 (9th Cir. 1971); Loper Lumber Co. v. United States, 444 F.2d 301 (6th Cir. 1971). Both cases ruled that interest was not due on the accumulated earnings tax until date of notice and demand. Bardahl explicitly adopted the reasoning of Motor Fuel Carriers in support of its conclusion that § 6601(f)(3) controlled; Loper did not rule on the applicability of that statute. Rather, the Sixth Circuit reached the same result as Motor Fuel Carriers, but did so by holding that § 6601(c)(4) [redesignated § 6601(b)(4) in 1975] controlled rather than §§ 6601(a) and 6155. II The present arguments and" }, { "docid": "23522771", "title": "", "text": "we think that the court was thinking only of that situation, not of a suit, like this, for refund of deficiency interest collected from the taxpayer. The sum of it is that plaintiff sues for deficiency interest collected from it, that Congress has distinguished 'markedly between a refund of that kind of interest paid by a taxpayer and statutory interest payable by the Government on an overpayment, and that it fits much better with the general pattern of the Internal Eevenue Code to read the pertinent sections (as their wording permits) to require compliance with the requirements of § 6511 even though the validity of the underlying tax is not at all in issue. We hold, therefore, that, with respect to 1960-1965, tax payer is barred from suit because it failed to file a timely claim for refund within § 6511. II The sole problem for 1966-1967 is whether interest on an accumulated earnings tax deficiency is computed from the day the return was due, or only from the time of notice and demand — and that is no longer a problem for us. Motor Fuel Carriers, Inc. v. United States, 190 Ct. Cl. 385, 420 F. 2d 702 (1970), held that the latter was the correct solution. We have followed Motor Fuel Carriers by orders in some thirty-three other cases. The Sixth and Ninth circuits have agreed with our conclusion. Ray E. Loper Lumber Co. v. United States, 444 F. 2d 301 (C.A. 6, 1971); Bardahl Mfg. Corp. v. United States, 452 F. 2d 604 (1971). There is no reason to depart from this consistent line of decision. Taypayer is entitled to recover for 1966 and 1967. Accordingly, the plaintiff’s motion for summary judgment is denied as to 1960-1965 and granted as to 1966-1967, while the defendant’s cross-motion is denied 'as to 1966-1967 and granted as to 1960-1965. The petition is dismissed as to 1960-1965. The amount of recovery for 1966 and 1967 will be determined under Eule 131 (c). Tlie last payment for any of those years was made on November 28, 1966, over 3% years before the" }, { "docid": "11558538", "title": "", "text": "DECISION AND ORDER REYNOLDS, Chief Judge. This is an action for the refund of federal unemployment taxes (“FUTA”) plus inter est and penalties in the amount of $168.80 for the period January 1, 1972 through December 31, 1972. The Government has counterclaimed for federal withholding and federal insurance contribution act (“FICA”) taxes plus interest, penalties, and fees for the years 1972 through 1977, in the amount of $55,411.40, and for FUTA taxes interest and penalties for the years 1972, 1976, and 1977, in the amount of $410.33, plus accrued but unassessed interest and penalties thereon. This court has jurisdiction under 26 U.S.C. §§ 7402, 7422 and 28 U.S.C. §§ 1340, 1345. Presently before the court is the Government’s motion for summary judgment, which will be granted. Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(e), Federal Rules of Civil Procedure, further provides that when a motion for summary judgment is made and supported as provided above, the adverse party may not rest upon the mere allegations or denials of his pleading, but must set forth by affidavit or otherwise specific facts showing that there is a genuine issue for trial. The following facts are not in dispute. The taxpayer and plaintiff, Automated Typesetting, Inc., is a Wisconsin corporation, which was incorporated by Louis E. Blaser on December 26, 1962. Louis E. Blaser, Bertha Blaser, his wife, and Robert Blaser, their son, were officers and directors of the taxpayer prior to and throughout the period of April 27, 1972 through December 31, 1977. Prior to April 27, 1972, Louis, Bertha, and Robert Blaser were employees of the taxpayer and were treated as employees for federal employment tax purposes. On April 26, 1972, Louis Blaser executed as grantor an instrument creating the Louis E. Blaser Family Estate (a trust). Simultaneously, Louis Blaser transferred all" }, { "docid": "13308067", "title": "", "text": "because the tax is not self-assessing, we interpret §§ 531-535 as giving rise to accumulated earnings tax liability only after the Commissioner has given notice and demand for payment. Although we have followed a somewhat different line of reasoning, we reach the conclusion stated by the Court of Claims as an alternative ground for its decision in Motor Fuel Carriers, Inc. v. United States, supra, that under § 6601(a) and (c) a taxpayer is liable for interest on an unpaid § 531 levy only between the receipt of notice and demand and payment of the tax. 420 F.2d at 708. The basis of the decision of the District Court that interest begins to run from the due date of the tax return is that the accumulated earnings tax is not an “assessible penalty, additional amount, or addition to the tax” within the meaning of § 6601(f) (3). The Government relies upon Revenue Ruling 66-237 to the same effect. The Court of Claims held to the contrary in Motor Fuel Carriers, Inc. v. United States, supra. We do not find it necessary to determine whether the accumulated earnings tax is a penalty, additional amount or addition to the tax within the meaning of § 6601(f) (3). Our decision is founded upon the language of § 6601(a) and (c), giving due consideration to the purpose, mode of determination and mechanics of assessment of the accumulated earnings tax. Reversed and remanded with instructions to enter judgment for the taxpayers in the amounts to which they are entitled under this opinion. APPENDIX A FINDINGS OF FACT. 1. These related actions are for the refund of interest paid by the various plaintiffs in the total amount of $272,-866.83. 2. J. Graham Brown was the principal corporate officer and principal shareholder of all four plaintiff corporations. 3. These cases were consolidated for trial and were submitted to the Court on the basis of the pleadings and stipulations filed. The admissions of the parties and the stipulations filed are incorporated herein by reference. 4. (a) The plaintiff Ray E. Loper Lumber Company, Inc., timely filed its corporate" }, { "docid": "23522772", "title": "", "text": "and that is no longer a problem for us. Motor Fuel Carriers, Inc. v. United States, 190 Ct. Cl. 385, 420 F. 2d 702 (1970), held that the latter was the correct solution. We have followed Motor Fuel Carriers by orders in some thirty-three other cases. The Sixth and Ninth circuits have agreed with our conclusion. Ray E. Loper Lumber Co. v. United States, 444 F. 2d 301 (C.A. 6, 1971); Bardahl Mfg. Corp. v. United States, 452 F. 2d 604 (1971). There is no reason to depart from this consistent line of decision. Taypayer is entitled to recover for 1966 and 1967. Accordingly, the plaintiff’s motion for summary judgment is denied as to 1960-1965 and granted as to 1966-1967, while the defendant’s cross-motion is denied 'as to 1966-1967 and granted as to 1960-1965. The petition is dismissed as to 1960-1965. The amount of recovery for 1966 and 1967 will be determined under Eule 131 (c). Tlie last payment for any of those years was made on November 28, 1966, over 3% years before the filing of the petition here In August 1970. We are Informed that protective refund claims were filed, after the Institution of suit, in February 1971, more than four years after the last payment. If the Interest sought here Is not Included In “any internal revenue tax alleged to (have been erroneously or illegally assessed or collected,” then it is covered by “any sum alleged to have been excessive or in any manner wrongfully collected.” See Flora v. United States, 362 U.S. 145, 149-150 (1960), as well as note 11, infra, and the accompanying text. Taxpayer concedes that it has not met these preconditions with respect to 1960-1965. See note 1, supra. .The exception In §6601 (f)(1) fo-r “subehapter B of chapter 63, relating to deficiency procedures” concerns deficiency notices, as 'well as appeals to and redeterminations by the Tax 'Court. Those sections, designed to stay collection until opportunity has been had for review by the Tax Court, are not applicable to the present case. Section 240)1 (a) : “Every civil action commenced against the United" }, { "docid": "17841938", "title": "", "text": "Oommissioner Mastín G. White, 'handed down a memorandum opinion on November 15,1971, in which he recommended that plaintiffs be awarded judgment against the United States for the sum of $473, 010.86. Nothing was said about interest. Thereafter, on February 3, 1972, the parties filed a joint motion for judgment under Eule 141(b) in which they asked that the opinion of the trial commissioner be adopted in which he had found that the plaintiffs were entitled to judgment against the United States for $473,010.86, “together with interest as provided by law.” Pursuant to this joint motion, the court entered a per curiam opinion on March 17, 1972, approving and adopting the memorandum opinion of the trial commissioner and awarded plaintiffs a judgment against the United States for said sum of $473,010.86 .The judgment did not provide for interest. See Economy Plumbing & Heating Co. v. United States, 197 Ct. Cl. 839, 456 F. 2d 713 (1972). On April 13,1972, plaintiffs filed a motion requesting that the opinion and judgment of the court be amended by awarding plaintiffs interest at the rate of six percent per annum from November 18,1960, on the principal sum of $473,010.86. The defendant has contested this motion. The case is before us on such motion. The sole question before us is whether or not plaintiffs are entitled to interest on their judgment from the time the amount (thereof was 'paid by GAO to the IRS to satisfy Lieb’s tax lien. It is important to note that when plaintiffs filed this suit they sought recovery of funds due them as an equitable adjustment on the contract which they alleged had been wrongfully withheld by the government. The suit was clearly one to recover funds due under a contract. In our per curiam opinion in this case mentioned above, we adopted the statement of our trial commissioner as follows: * * * This is an action for the recovery of $473,010.86, representing a portion of an equitable adjustment under contract No. UA-11-032-ENG-1232 (“the contract”) that was — according to allegations in the petition— wrongfully withheld by the defendant. [Footnote" }, { "docid": "11811096", "title": "", "text": "taxpayer to pay the tax at the time and place fixed for filing the return. If the date for payment is not prescribed, the last date for payment is deemed to be the date the liability arises, in no event later than notice and demand therefor. I.R.C. § 6601(b)(4). One exception to the general rule is that interest only runs on an assessable penalty, additional amount, or addition to the tax from the date of notice and demand. I.R.C. § 6601(e)(3). Our problem is how to treat within this framework the underpayment of income tax for a taxable year resulting from a section 482 allocation. Plaintiffs argument that the general rule does not apply depends upon the application to this case of the doctrine enunciated with respect to the accumulated earnings tax, I.R.C. § 531, set forth in the opinion of this court in Motor Fuel Carriers, Inc. v. United States, 190 Ct. Cl. 385, 420 F.2d 702 (1970). In Motor Fuel Carriers, this court held that interest did not begin to run on the assessment of the accumulated earnings tax until notice and demand were made. The court supported its conclusion on alternative grounds: (1) the accumulated earnings tax was an \"assessable penalty, additional amount, or addition to the tax” within the meaning of section 6601(f)(3) [now I.R.C. § 6601(e)(3)]; and (2) if the general rule of section 6601(a) did apply, the last date prescribed for payment was the date of notice and demand pursuant to section 6155. Other courts have reached the same results with respect to the accumulated earnings tax. Bardahl Mfg. Corp. v. United States, 452 F.2d 604 (9th Cir. 1971) (section 531 tax an addition to the tax or penalty (§ 6601(e)(3))); Ray E. Loper Lumber Co. v. United States, 444 F.2d 301 (6th Cir. 1971) (last date for payment of accumulated earnings tax not prescribed (§ 6601(b)(4))). The court in Motor Fuel Carriers relied on the following principal factors in determining that either the accumu lated earnings tax was an addition to the tax under section 6601(e)(3) or that the last date prescribed for" }, { "docid": "23522776", "title": "", "text": "Government that that is precisely one situation in which Congress would want the Service to have an opportunity to correct its mistake before litigation was begun. Section 1346(a) (1) gives the district courts jurisdiction, “concurrent with the 'Court of Claims”, of “Any civil action against the united States for 'the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal revenue laws True to its theory that this is not a tax refund suit but one for liquidated damages under 28 U.S.C. § 1491 (note 8, supra), taxpayer says that it is not entitled to such statutory interest. Since we reject its basic position, we of course reject the accompanying concession. Chatham Corp v. United States, 196 Ct. Cl. 772 (1971) ; Clearwater Land Company Inc. v. United States, No. 314-70 and other cases, order of January 28, 1972. Skelton, Judge, concurring: This case troubles me. The government has collected money from the plaintiff that plaintiff did not owe and to which the government is not entitled. It is understandable that the plaintiff feels that it is not right, just, nor equitable for the government to keep the money. On the other hand, even though I sympathize with the plaintiff, I see no legal way it can recover the money. While it is true that the plaintiff could not during 1960-1967 foresee the decision in Motor Fuel Carriers, Inc. v. United States, 190 Ct. Cl. 385, 420 F. 2d 702 (1970), and cases following it to the effect that interest does not accrue on an accumulated earnings tax until the government serves notice that the tax is due, nevertheless, it could have taken the same position as the plaintiff did in that case and could have filed protective claims for the refund of the interest. When it did not do so within the statutory period of three years, its claim became barred by the statute of limitations, as" }, { "docid": "4338738", "title": "", "text": "Income tax; deductions; depreciation; Merchant Ship Sales Act. — These cases came before the court on plaintiff’s and defendant’s motions for summary judgment. Upon consideration thereof, together with the opposition thereto, and oral argument of counsel, and on the basis of the decision by this court in Socony Mobil Oil Co., Inc. v. United States, 153 Ct. Cl. 638, the court, on December 17,1962, granted plaintiff’s motion for summary judgment and ordered that judgment be entered for the plaintiff with the amounts of recovery to be determined pursuant to Rule 38(c). The court further ordered that defendant’s motion be denied and that defendant’s counterclaim filed in each of the cases be dismissed. Defendant’s motion for relief from the order of December 17, 1962, was denied March 6, 1963. On March 29, 1963, in accordance with a memorandum report of the commissioner, the court ordered that judgment be entered for the plaintiff for $603,529.14, with interest according to law (1) on $15,-567.63 from July 27,1963; (2) on $290,781.26 from October 5, 1954; (3) on $164,003.97 from July 3, 1956; and (4) on $133,176.28 from October 9,1956." }, { "docid": "11811117", "title": "", "text": "that the tax returns for the involved periods were due to the date of payment. Taxpayer says it is entitled to a refund of the amount paid in interest from the date that the tax returns for the involved periods were due to the date that notice and demand for payment was made following the assessments. Appendix A lists the tax periods involved in this case and the alleged overpayments of interest claimed by the taxpayer. I The Internal Revenue Code requires that interest be paid on taxes due from \"the last date prescribed for payment” of the tax until the date paid. 26 U.S.C. § 6601(a). Section 6151, entitled \"Time and Place for Paying Tax Shown on Returns,” orders a taxpayer who files a required return to pay the tax at the time and place fixed for filing the return. 26 U.S.C. § 6151. This statute applies when a taxpayer does not need an assessment or notice and demand from the Secretary. When notice and demand is issued, the tax is to be paid at the time stated in the notice. 26 U.S.C. § 6155(a). If the date for payment is not prescribed, that date is deemed to be the date the liability for payment arises, and in no event is later than the date of the Commissioner’s notice and demand. 26 U.S.C. § 6601(b)(4). An exception to these general rules is set forth in 26 U.S.C. § 6601(e)(3), which provides that: Interest shall be imposed under subsection (a) in respect of any assessable penalty, additional amount, or addition to the tax only if such assessable penalty, additional amount, or addition to the tax is not paid within 10 days from the date of notice and demand therefor, and in such case interest shall be imposed only for the period from the date of the notice and demand to the date of payment. Plaintiffs argument relies heavily on our decision in Motor Fuel Carriers, Inc. v. United States, 190 Ct. Cl. 385, 420 F.2d 702 (1970). In that case, taxpayer was assessed deficiencies which included liabilities under 26 U.S.C." }, { "docid": "11811118", "title": "", "text": "at the time stated in the notice. 26 U.S.C. § 6155(a). If the date for payment is not prescribed, that date is deemed to be the date the liability for payment arises, and in no event is later than the date of the Commissioner’s notice and demand. 26 U.S.C. § 6601(b)(4). An exception to these general rules is set forth in 26 U.S.C. § 6601(e)(3), which provides that: Interest shall be imposed under subsection (a) in respect of any assessable penalty, additional amount, or addition to the tax only if such assessable penalty, additional amount, or addition to the tax is not paid within 10 days from the date of notice and demand therefor, and in such case interest shall be imposed only for the period from the date of the notice and demand to the date of payment. Plaintiffs argument relies heavily on our decision in Motor Fuel Carriers, Inc. v. United States, 190 Ct. Cl. 385, 420 F.2d 702 (1970). In that case, taxpayer was assessed deficiencies which included liabilities under 26 U.S.C. § 531 (the accumulated earnings tax). The IRS assessed interest from the due date of taxpayer’s return. The government had successfully asserted liability. On the suit for refund of the interest assessed, this court ruled for taxpayer, concluding that interest began to run on the date of notice and demand. The court’s decision was based on alternative grounds: (1) the accumulated earnings tax was an \"assessable penalty, additional amount, or addition to the tax” within the meaning of § 6601(f)(3) [the present § 6601(e)(3)]; and (2) if the general rule of § 6601(a) applied, the last date prescribed for payment was the date of notice and demand pursuant to § 6155. Plaintiff states that the theory on which these alternative grounds lie applies to the present case. The rationale for both alternatives in Motor Fuel Carriers, Inc., supra, plaintiff argues, was that there was a need for an administrative determination before taxpayer owed any accumulated earnings tax. The court stated: * * * It is inherent in the nature of the tax — and was" }, { "docid": "23522754", "title": "", "text": "Davis, Judge, delivered the opinion of the court: Standing squarely on Motor Fuel Carriers, Inc. v. United States, 190 Ct. Cl. 385, 420 F. 2d 702 (1970), plaintiff Alexander Proudfoot Company sues for refund of ¡the pre-notice interest it paid on deficiencies in accumulated earnings tax for each of the eight years 1960 through 1967. With respect to the first six years (1960-1965), the Government’s threshold defense is that no timely claims for refund were filed and therefore this refund suit is wholly precluded, whatever its merits might otherwise be. For 1966 and 1967, on the other hand, it is admitted that informal but adequate refund claims were presented, and the only defense is that we should overrule Motor Fuel Carriers. It is unnecessary to detail the facts and figures which are set forth in the cross-motions for summary judgment. The Government agrees that for each year taxpayer paid, very shortly after notice and demand, the amounts of accumulated earnings tax set out in the respective deficiency notices, together with interest from the return due date for the particular year. On its side, the taxpayer admits that, prior to beginning this action, it filed no refund claims (relating to the six years 1960-1965) for the interest for which it now sues. These simple facts are enough for our decision. I The initial question, for 1960-1965, is whether taxpayer’s right to bring this refund suit is controlled by the special sections of the Internal Revenue Code on tax refund claims and actions, or whether it is governed by the general provisions regulating the institution of suits against the Government in this court (including the over-all six-year statute of limitations, 28 U.S.C. § 2501). If the former apply, plaintiff’s suit is concededly barred since it is common ground that, if the special tax requirements are applicable, they dominate and exclude the general pre-conditions for suit against the United States. See United States v. A. S. Kreider Co., 313 U.S. 443 (1941). Defendant’s chief argument for use of the Revenue ¡Code’s special mechanism proceeds through a step-by-step invoca, tion of related sections of" }, { "docid": "11811095", "title": "", "text": "the years involved. A settlement was reached and embodied in a stipulation in the Tax Court. Also, the taxpayer and Commissioner agreed upon the amount of adjustment for the years after the Tax Court action. Neither the agreement nor the stipulation waived taxpayer’s right to file claims for refund or credit based on the contention that some or all of the interest on the deficiencies was not properly due the IRS. Taxpayer paid the assessments agreed upon, plus interest from the date that the tax returns for the involved periods were due to the date of payment. Plaintiff seeks a refund of the amount of interest charged from the date that the original tax was due to the date of the Service’s notice and demand for payment of the deficiency. I The general rule for interest is that it runs from the \"last date prescribed for payment,” to the date paid. I.R.C. § 6601(a). When a return of tax is required, section 6151, entitled \"Time and place for paying tax shown on returns,” requires a taxpayer to pay the tax at the time and place fixed for filing the return. If the date for payment is not prescribed, the last date for payment is deemed to be the date the liability arises, in no event later than notice and demand therefor. I.R.C. § 6601(b)(4). One exception to the general rule is that interest only runs on an assessable penalty, additional amount, or addition to the tax from the date of notice and demand. I.R.C. § 6601(e)(3). Our problem is how to treat within this framework the underpayment of income tax for a taxable year resulting from a section 482 allocation. Plaintiffs argument that the general rule does not apply depends upon the application to this case of the doctrine enunciated with respect to the accumulated earnings tax, I.R.C. § 531, set forth in the opinion of this court in Motor Fuel Carriers, Inc. v. United States, 190 Ct. Cl. 385, 420 F.2d 702 (1970). In Motor Fuel Carriers, this court held that interest did not begin to run on the" }, { "docid": "23522777", "title": "", "text": "case troubles me. The government has collected money from the plaintiff that plaintiff did not owe and to which the government is not entitled. It is understandable that the plaintiff feels that it is not right, just, nor equitable for the government to keep the money. On the other hand, even though I sympathize with the plaintiff, I see no legal way it can recover the money. While it is true that the plaintiff could not during 1960-1967 foresee the decision in Motor Fuel Carriers, Inc. v. United States, 190 Ct. Cl. 385, 420 F. 2d 702 (1970), and cases following it to the effect that interest does not accrue on an accumulated earnings tax until the government serves notice that the tax is due, nevertheless, it could have taken the same position as the plaintiff did in that case and could have filed protective claims for the refund of the interest. When it did not do so within the statutory period of three years, its claim became barred by the statute of limitations, as stated in the court’s decision. By hindsight, the plaintiff now realizes that by reason of our Motor Fuel Carriers decision, neither the accumulated earnings tax nor interest thereon was due until the government served the notice, although only interest was involved in that case. While the tax was owed in that case, it was not due until the notice was served. This necessarily follows, because if the tax had been due, interest would have accumulated and would have been due also. Under these circumstances, the plaintiff finds itself in a situation where neither the tax nor interest was due. Yet, the government collected interest that had neither accumulated nor was due and refuses to refund it. It is easy to understand why the plaintiff would feel that it is not right nor just for the government to keep the interest money under these circumstances. However, statutes of limitations are not based on fairness nor justice, but have as their purpose the prevention of litigation unless the interested party acts within the prescribed time. Many just" } ]

[ { "docid": "21874110", "title": "", "text": "service. It also granted summary judgment against the Begleys’ section 1983 claim, and against their, claim that application of the deposit to post-petition arrearages violated section 366(b), 41 B.R. 402. PECO appeals, arguing that the Bankruptcy Code has pre-empted Pennsylvania’s procedures. In response, the Begleys claim that PECO remains subject to the provisions of the Pennsylvania Code, which among other things provides for no termination of service until after an attempt to negotiate a payment plan has failed. II. Section 366 of the Bankruptcy Code deals specifically with utility service to the debt- or and provides specific protections for both debtor and creditor. The debtor is protected against, discrimination by the utility based on pre-petition arrearages, under section 366(a): (a) Except as provided in subsection (b) of this section, a utility may not alter, refuse, or discontinue service to, or discriminate against, the trustee or the debtor solely on the basis that a debt owed by the debtor to such utility for service rendered before the order for relief was not paid when due. 11 U.S.C. § 366(a). Nevertheless, section 366(b) allows a utility to demand “adequate assurance” of payment of post petition bills, and allows termination for failure to post such assurance: (b) Such utility may alter, refuse, or discontinue service if neither the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and hearing, the court may order reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment. 11 U.S.C. § 366(b) (emphasis added). The inclusion of these provisions in the Bankruptcy Code was designed to clarify the bankruptcy court’s power to prevent a utility from using its termination power to enforce payment of pre-petition debts, as long as adequate security for payment of future bills is provided to the utility. See 2 Collier on Bankruptcy at ¶ ¶ 366.01-.03 (15th Ed.1984). By the terms" } ]

[ { "docid": "5142432", "title": "", "text": "the Court has endeavored to illuminate both the procedural and substantive aspects of this legislative enactment. Section 366 provides as follows: (a) Except as provided in subsection (b) of this section, a utility may not alter, refuse, or discontinue service to, or discriminate against, the trustee or the debt- or solely on the basis that a debt owed by the debtor to such utility for service rendered before the order for relief was not paid when due. (b) Such utility may alter, refuse, or discontinue service if neither the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment. 11 U.S.C. § 366. The Debtor has made no contention that Ohio Edison has altered, refused or discontinued service or discriminated against the Debtor on the basis that a debt owed by the Debtor to Ohio Edison for electrical service rendered before the commencement of this Chapter 11 case was not paid when due. Consequently, this case does not involve the determination of any § 366(a) issue. Two issues are involved in this contested matter under § 366(b). First, what procedures may be employed by parties in interest in the conduct of these disputes? Second, what are the respective legal rights of the parties under § 366(b) in both the absence and presence of court involvement. To this end, the district court in In re Utica Floor Maintenance, Inc., supra, illuminated some of the legislative history and competing interests involved in a § 366 proceedings: The legislative history of 11 U.S.C. § 366 indicates that the provision was fashioned to protect the utility while preventing discrimination against the debtor. H.Rep. No. 95-595, 95th Cong., 1st Sess., 350 (1977). Massachusetts Electric Co. v. Keydata Corp. (In re Keydata Corp.,) 12 B.R. 156, 158" }, { "docid": "18889881", "title": "", "text": "the trustee or the debtor solely on the basis of the com mencement of a ease under this title or that a debt owed by the debtor to such utility for service rendered before the order for relief was not paid when due. (b) Such utility may alter, refuse, or discontinue service if neither the. trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment. 11 U.S.C. § 366. The intended effect of section 366(a) is to prevent a utility from withholding post-petition service in order to enforce payment of pre-petition debts, so long as the debtor or trustee provides adequate security for payment of future bills. See 2 L. King, Collier on Bankruptcy §§ 366.01-.03 (15th ed. 1990). While a utility may not terminate service for failure to pay pre-petition arrearages, and may not refuse to provide service during the 20 days following the filing of a bankruptcy petition, see In re Whittaker, 882 F.2d 791, 794 (3rd Cir.1989), it may terminate service if, after expiration of the 20-day period, the debtor or trustee fails to post adequate assurance of payment for post-petition service. Furthermore, it is well-established that section 366(b) does not, by itself, bar a utility from terminating service to a debtor or trustee who has posted adequate assurance but fails to make a post-petition payment. See Begley v. Philadelphia Elect. Co., 760 F.2d 46, 49 (3rd Cir.1985); In re Security Investment Properties, Inc., 559 F.2d 1321, 1325 (5th Cir.1977); 2 L. King, Collier on Bankruptcy §§ 366.01-03 (15th ed. 1990). Section 366 did not, therefore, prevent MichCon from terminating service to 445 Fisher Freeway for failure to pay post-petition bills. The section makes no provision, however, concerning the procedures a utility must follow when terminating a debtor." }, { "docid": "16894510", "title": "", "text": "the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment. Debtor relies on Collier’s statement that “discrimination against the debtor or trustee is flatly precluded by subsection 366(a) and not mentioned in subsection 366(b) which suggests that discrimination against a debtor simply because it has sought relief under the Bankruptcy Act is improper.” 2 Collier on Bankruptcy ¶ 366.03, at 366-4 (15th ed.1982). While it is true that Section 366(a) prohibits a utility from altering service to, refusing service to, discontinuing service to, or discriminating against the trustee or the debtor solely because a debt for pre-order-for-relief service was not paid when due, Section 366(a) is expressly made subject to Section 366(b). Section 366(b) permits a utility to alter, refuse, or discontinue service if the debtor fails to furnish adequate assurance of payment for post-order-for-relief services. A judicial determination of what constitutes adequate assurance of payment is not made a prerequisite to alteration, refusal, or discontinuation of service. Thus, a utility may make an independent determination of what security is necessary to provide adequate assurance. It follows that a utility may notify the debtor of what it requires. If the debtor disagrees, it may ask the court to modify the utility’s demand. Accord, In re Robmac, Inc., 8 B.R. 1 (Bkrtcy.N.D.Ga.1979); In re Hennen, supra; In re Stagecoach Enterprises, 1 B.R. 732, 734 (Bkrtcy.M.D.Fla.1979). But if neither the debtor nor any other party in interest requests a hearing, the utility may alter, refuse, or discontinue service if in the utility’s subjective judgment it has not been given adequate assurance of payment. This Court disagrees with In re Coury, 22 B.R. 766 (Bkrtcy.W.D.Pa.1982). See also Demp v. Philadelphia Electric Co. (In re Demp), 22 B.R. 331 (Bkrtcy.E.D.Pa.1982) (following Coury). In Coury," }, { "docid": "1140726", "title": "", "text": "to negotiate the terms of adequate assurance within 20 days, Debtor is virtually at the mercy of the utility); In re Smith, Richardson and Conroy, Inc., 50 B.R. 5 (Bkrtcy.S.D.Fla.1985) (utility may not stop service within 20 days after bankruptcy; thereafter, it may discontinue service if neither the trustee nor Debtor within 20 days “furnishes adequate assurance of payment”); Marion Steel, 35 B.R. at 197 (once the twenty day period has expired, the utility is in the driver’s seat and may discontinue service as it sees fit (quoting In re Stagecoach Enterprises, Inc., 1 B.R. 732 (Bkrtcy.M.D.Fla.1979))). Thus, § 366(a) ... prohibits the utility from discrimination in providing future service to the Debtor due to the existence of a prepetition debt that might not be paid due to the bankruptcy, comparable to the prohibition of discrimination imposed upon governmental units and private employers in 11 U.S.C. § 525. However, unlike § 525, which requires no performance from the Debtor to avoid discrimination, § 366(b) provides a “self-executing” provision whereby the Debtor is given twenty (20) days to “furnish ... adequate assurance of payment, in the form of a deposit or other security, for service after that date.” Only if the Debtor and the utility cannot agree on the form of adequate assurance, or another party in interest objects to the agreement reached, does the matter reach the Court. Penn Jersey, 72 B.R. at 984. Section 366 prohibits a utility from unilaterally discontinuing service within 20 days after the filing of a petition. Marion Steel Co., 35 B.R. 188. However, the utility may make no demand on the Debtor within the twenty day period, leaving upon the Debtor the burden of coming forward within the twenty day period with “adequate assurance of payment.” Id. at 197 (citation omitted). See also Begley v. Philadelphia Elec. Co., 760 F.2d 46 (3d Cir.1985) (utility may terminate Debtor’s account if Debtor fails, within 20 days to post adequate assurance of payment for postpetition services; if the utility contests the adequacy of the payment, the bankruptcy court may order a reasonable modification). The parties had no" }, { "docid": "2652157", "title": "", "text": "discriminate against, the trustee or the debtor solely on the basis of the commencement of a case under this title or that a debt owed by the debtor to such utility for service rendered before the order for relief was not paid when due. (b) Such utility may alter, refuse, or discontinue service if neither the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment. 11 U.S.C. § 366. The purpose of § 366 is “to prevent the threat of termination from being used to collect pre-petition debts while not forcing the utility to provide services for which it may never be paid.” Begley v. Philadelphia Elec. Co. (In re Begley), 760 F.2d 46, 49 (3d Cir.1985). Congress sought to strike a balance, in enacting § 366, between the general right of a creditor to refuse to do business with a debtor post-petition, and the debtor’s need for utility service. In re Best Products Co., 203 B.R. 51, 53 (Bankr.E.D.Va.1996); see also Hanratty v. Philadelphia Elec. Co. (In re Hanratty ), 907 F.2d 1418, 1424 (3d Cir.1990). The section in essence recognizes the monopoly powers of most utilities and requires that they provide initial service to a debtor after a bankruptcy ease is commenced. Within the small body of case law involving this issue, § 366(b) has been read as an exception to the automatic stay, allowing a utility to alter, refuse or discontinue service for failure to provide adequate assurance of payment without recourse to the bankruptcy court. See Carter v. South County Water System (In re Carter), 133 B.R. 110, 112 (Bankr. N.D.Ohio 1991) (holding in a Chapter 13 case that a utility’s right to terminate service for debtor’s failure to tender adequate assurance of payment under §" }, { "docid": "18889882", "title": "", "text": "(15th ed. 1990). While a utility may not terminate service for failure to pay pre-petition arrearages, and may not refuse to provide service during the 20 days following the filing of a bankruptcy petition, see In re Whittaker, 882 F.2d 791, 794 (3rd Cir.1989), it may terminate service if, after expiration of the 20-day period, the debtor or trustee fails to post adequate assurance of payment for post-petition service. Furthermore, it is well-established that section 366(b) does not, by itself, bar a utility from terminating service to a debtor or trustee who has posted adequate assurance but fails to make a post-petition payment. See Begley v. Philadelphia Elect. Co., 760 F.2d 46, 49 (3rd Cir.1985); In re Security Investment Properties, Inc., 559 F.2d 1321, 1325 (5th Cir.1977); 2 L. King, Collier on Bankruptcy §§ 366.01-03 (15th ed. 1990). Section 366 did not, therefore, prevent MichCon from terminating service to 445 Fisher Freeway for failure to pay post-petition bills. The section makes no provision, however, concerning the procedures a utility must follow when terminating a debtor. Nor does the legislative history contain any mention of termination procedures. See. S.Rep. No. 95-989, 95th Cong., 2d Sess. 60 (1978); H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 350 (1977), reprinted in 1978 U.S. CODE CONG. & ADMIN.NEWS 5787, 5846, 6306. The scope of jurisdiction granted by section 366 to the bankruptcy court is explicitly limited to ordering “reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment,” 11 U.S.C. § 366(b), in case the debtor or trustee and the utility cannot reach agreement on the amount. As the Third Circuit explained, once the termination remedy has been sought by the utility in a post-petition context, the “adequate assurance” provision of section 366(b) “no longer has vitality.” Begley, 760 F.2d at 50. Although 11 U.S.C. § 366(b) does not stand in the way of utility termination in this case, it does not control the procedure by which such termination may occur. It does not, therefore, preempt state and municipal procedural regulations. See Begley, 760 F.2d at 60;" }, { "docid": "5142427", "title": "", "text": "issuance of a preliminary injunction. Friendship Materials, Inc. v. Michigan Brick, Inc., supra, 679 F.2d at 105. In sum, for this reason, the motion for a preliminary injunction is denied. This finding, however, somehow belies certain inferences which could be drawn from the procedural posture of this case. Counsel for both parties in this case in the Court’s presence were unable to agree to mutually acceptable terms under § 366(b). Section 366(b) provides as follows: Such utility may alter, refuse, or discontinue service if neither the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment. The failure to reach such an agreement or to what constitutes “adequate assurance of payment” under § 366(b) enables the utility, under the first sentence of § 366(b), to “alter, refuse, or discontinue service” unilaterally after 20 days after the date of the order for relief. In re RobMac Inc., supra, 8 B.R. at 3, 6 B.C.D. at 1370; In re Stagecoach Enterprises, Inc., 1 B.R. 732, 734, 5 B.C.D. 1142, (Bkrtcy.M.D.Fla.1979). Thus, the Court maintains its strong conviction, based upon its experience with similar matters under the Code, that in the absence of such an express agreement, a continuing threat of actual irreparable harm in the form of a potentially dangerous unilateral electrical cut-off could have occurred in this case. The Court thus felt constrained to issue the September 29, 1983 temporary restraining order to maintain the “status quo” pending a determination of the motion for a preliminary injunction and the § 366(b) “adequate assurance of payment” issue. Subsequent to the Court’s determination of the § 366(b) issue, any further request for injunctive relief by Debtor may be rendered moot through issuance of the § 366(b) order detailing the terms and conditions of “adequate" }, { "docid": "5142431", "title": "", "text": "Utica Floor Maintenance, 25 B.R. 1010, 1015, 10 B.C.D. 167, 171 (D.C.N.D.N.Y.1982). The Court is constrained to hold that until the § 366 hearing can be held, if the debtor and utility fail to reach an agreement as to what constitutes “adequate assurance” within 20 days of the order for relief, the Rule 65 procedure is the most appropriate vehicle to protect the rights of both parties involved. However, this issue seems far from settled. See In re Utica Floor Maintenance, supra, 25 B.R. 1010, 1011, 10 B.C.D. 167, 168 (Bankruptcy Court issued show cause order restraining utility from terminating utility services and scheduling § 366(b) hearing to determine whether further security required to afford utility “adequate assurance of payment”). Reiterating its previous position, in the interest of conserving the valuable resources of the Court, the Court has chosen to obviate these disputes by requiring that an adversary proceeding and Rule 65 motion be filed in order to enjoin utility service before the § 366 hearing. Turning to the merits of the § 366 motion, the Court has endeavored to illuminate both the procedural and substantive aspects of this legislative enactment. Section 366 provides as follows: (a) Except as provided in subsection (b) of this section, a utility may not alter, refuse, or discontinue service to, or discriminate against, the trustee or the debt- or solely on the basis that a debt owed by the debtor to such utility for service rendered before the order for relief was not paid when due. (b) Such utility may alter, refuse, or discontinue service if neither the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment. 11 U.S.C. § 366. The Debtor has made no contention that Ohio Edison has altered, refused or" }, { "docid": "5979331", "title": "", "text": "is so entitled, then the Debtor’s standing on its characterization of the payment as a payment on account would not serve to prevent PECO from terminating service unless the Debtor then agreed to allow the payment to be considered as a deposit. If it is not entitled to the $17,050.00 payment as security, then PECO’s demand for this sum was wrongful, and we would allow the Debtor to characterize the payment as a payment on account. In other words, the determination of whether PECO is entitled to this sum as a security deposit in order to provide it with adequate assurance under § 366(b), rather than how the Debtor unilaterally sought to apply the payment, is the controlling issue in determining which version of the Order we shall enter. Our decision is therefore directed by interpretation of 11 U.S.C. § 366, which provides as follows: (a) Except as provided in subsection (b) of this section, a utility may not alter, refuse, or discontinue service to, or discriminate against the trustee or the debt- or solely on the basis that a debt owed by the debtor to such utility for service rendered before the order for relief was not paid when due. (b) Such utility may alter, refuse, or discontinue service if neither the trustee or the debtor, within 20 days after the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the deposit or other security necessary to provide adequate assurance of payment. Collier indicates that § 366 was promulgated to resolve a split in the Circuits, in cases under the Bankruptcy Act, as to whether the bankruptcy stay prevented a utility from threatening to terminate the service of a debtor in bankruptcy. 2 COLLIER ON BANKRUPTCY, 11366.01, at 366-1 to 366-3 (15th ed. 1986). The leading Third Circuit contribution to this controversy, a statement suggesting that, in that case, the interests of the debtor outweighed those" }, { "docid": "2652158", "title": "", "text": "(3d Cir.1985). Congress sought to strike a balance, in enacting § 366, between the general right of a creditor to refuse to do business with a debtor post-petition, and the debtor’s need for utility service. In re Best Products Co., 203 B.R. 51, 53 (Bankr.E.D.Va.1996); see also Hanratty v. Philadelphia Elec. Co. (In re Hanratty ), 907 F.2d 1418, 1424 (3d Cir.1990). The section in essence recognizes the monopoly powers of most utilities and requires that they provide initial service to a debtor after a bankruptcy ease is commenced. Within the small body of case law involving this issue, § 366(b) has been read as an exception to the automatic stay, allowing a utility to alter, refuse or discontinue service for failure to provide adequate assurance of payment without recourse to the bankruptcy court. See Carter v. South County Water System (In re Carter), 133 B.R. 110, 112 (Bankr. N.D.Ohio 1991) (holding in a Chapter 13 case that a utility’s right to terminate service for debtor’s failure to tender adequate assurance of payment under § 366(b) is “self-executing” and that “a formal proceeding by the utility is not required.”); In re Penn Jersey Corp., 72 B.R. 981, 985 (Bankr.E.D.Pa.1987)(stating that debtor’s failure to provide adequate assurance of payment places the debtor “virtually at the mercy of the utility”), abrogated on other grounds, In re Lease-A-Fleet, Inc., 131 B.R. 945, 949-50 (Bankr.E.D.Pa.1991); Marion Steel Co. v. Ohio Edison Co. (In re Marion Steel), 35 B.R. 188, 197 (Bankr.N.D.Ohio 1983). Thus, based on a debtor’s failure to provide adequate assurance of payment, bankruptcy courts have concluded that § 366(b) grants utilities the unilateral right to terminate service. Courts have logically segued to the conclusion that if failure to provide adequate assurance of payment is grounds for a utility to terminate service, then failure to make postpetition payments likewise allows for termination without requesting permission from the bankruptcy court. The court in Begley held that where individual Chapter 7 debtors failed to pay post-petition utility bills, the utility could seek to terminate service following state law procedures without resorting to the bankruptcy court." }, { "docid": "2652156", "title": "", "text": "bankruptcy case was dismissed during the pendency of this appeal. Notwithstanding, an action under § 362(h) for damages for willful violation of the automatic stay, survives the dismissal of the bankruptcy case. See Price v. Rockford, 947 F.2d 829, 831-32 (7th Cir.1991); see also Javens v. City of Hazel Park (In re Javens), 107 F.3d 359, 364 n. 2 (6th Cir. 1997); In re Carroll, 903 F.2d 1266 (9th Cir.1990); Menk v. LaPaglia (In re Menk), 241 B.R. 896, 906 (9th Cir. BAP 1999); In re Fingers, 170 B.R. 419, 425 (S.D.Cal.1994); Skaggs v. Fifth Third Bank of Northern Kentucky (In re Skaggs), 183 B.R. 129 (Bankr.E.D.Ky. 1995); In re Nelson, 159 B.R. 924, 925 (Bankr.D.Idaho 1993). Thus, the present appeal is not moot. Merits Section 366 of the Bankruptcy Code pertains to the rights and obligations of debtors seeking to retain utility service after the filing of a bankruptcy petition and provides that: (a) Except as provided in subsection (b) of this section, a utility may not alter, refuse, or discontinue service to, or discriminate against, the trustee or the debtor solely on the basis of the commencement of a case under this title or that a debt owed by the debtor to such utility for service rendered before the order for relief was not paid when due. (b) Such utility may alter, refuse, or discontinue service if neither the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment. 11 U.S.C. § 366. The purpose of § 366 is “to prevent the threat of termination from being used to collect pre-petition debts while not forcing the utility to provide services for which it may never be paid.” Begley v. Philadelphia Elec. Co. (In re Begley), 760 F.2d 46, 49" }, { "docid": "19288668", "title": "", "text": "11 of the Bankruptcy Code. This case arises from their efforts to ensure continued utility services between the time of the filing of their Chapter 11 petition and the ultimate approval of their reorganization plan. Section 366(a) of the Bankruptcy Code, 11 U.S.C. § 366(a), prohibits utility suppliers from altering or discontinuing services to a customer because the customer files for bankruptcy. Section 366(b), however, establishes an exception to this prohibition in cases where the debtor fails to provide its utility suppliers, within the first twenty days after the debtor files its petition in bankruptcy, with “adequate assurance” that the debtor will continue to meet its payment obligations to the supplier. This subsection provides, specifically, that a “utility may alter, refuse, or discontinue service if neither the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date.” 11 U.S.C. § 366(b) (emphasis supplied). If the debtor and its utility fail to agree as to what will constitute “adequate assurance,” however, either party may file a motion requesting the bankruptcy court to settle the question: “On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment.” 11 U.S.C. § 366(b); see also 3 Collier on Bankruptcy ¶ 366.03, at 366-3 to -4 (1997). Here, Caldor claims, the sheer number of its utility suppliers, comprising more than 400 utility companies, made it difficult for it to engage in negotiations to provide each supplier with the “adequate assurance of payment” necessary to guarantee continued service under § 366. Caldor explains that it was also concerned that, if it were to engage in separate negotiations with its utility providers, the utilities would capitalize on Caldor’s vulnerable position by requiring unreasonably high security deposits. Accordingly, on September 26, 1995, Caldor bypassed the negotiations contemplated by § 366 and filed an application with the bankruptcy court, seeking to" }, { "docid": "19091573", "title": "", "text": "by the debtor to such utility for service rendered before the order for relief was not paid when due. Section 366(b) then goes on to provide: (Emphasis added). The requirement is for “adequate assurance” of payment, which, at least in this Circuit, need not necessarily be provided by deposit. See Virginia Elec. & Power Co. v. Caldor; Inc., 117 F.3d 646, 650-651 (2d Cir.1997) (“Caldor\"), aff'g 199 B.R. 1, 3 (S.D.N.Y.1996) (Stein, D.J.) (“Caldor-District ”). Whether utilities have adequate assurance of future payment is determined by the individual circumstances of each case. See Massachusetts Elec. Co. v. Keydata Corp. (In re Keydata Corp.), 12 B.R. 156, 158 (1st Cir. BAP 1981) (“Keydata ”); In re Utica Floor Maintenance, Inc., 25 B.R. 1010, 1016 (N.D.N.Y.1982). (b) Such utility may alter, refuse, or discontinue service if neither the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. “Adequate assurance” under section 366 should not be confused with “adequate protection” under section 361. In determining adequate assurance, a bankruptcy court is not required to give a utility company the equivalent of a guaranty of payment, but must only determine that the utility is not subject to an unreasonable risk of nonpayment for postpetition services. See Caldor-District, 199 B.R. at 3 (“The statute does not require an ‘absolute guarantee of payment’ ”); Keydata, 12 B.R. at 158 (“In our view, ‘adequate assurance of payment’ does not require an absolute guarantee of payment. What is required is that the utility be protected from an unreasonable risk of nonpayment”) (emphasis added). It also has been held that when making decisions as to what constitutes “adequate assurance” under section 366(b), bankruptcy courts are not bound by local or state tariff regulations. As the district court, later affirmed by the Third Circuit, held in Begley v. Philadelphia Elec. Co. (In re Begley), 41 B.R. 402 (E.D.Pa.1984), aff'd, 760 F.2d 46 (3d Cir.1985): The bankruptcy courts are in agreement that section 366(b) vests in" }, { "docid": "15127841", "title": "", "text": "the security deposits by 11 U.S.C. § 366(b) which provides: (b) Such utility may alter, refuse, or discontinue service if neither the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment. The bankruptcy court indicated that the purpose of 11 U.S.C. § 366(a) is to provide for utility service without interruption. See In re Monroe Well Service, Inc., 83 B.R. 317, 321 (Bankr.E.D.Pa.1988). It then said that 11 U.S.C. § 366(a) forbids a utility from discriminating against a debtor on the basis of a preexisting debt as well as by reason of the commencement of a bankruptcy case. Thus, in its view, “to demand a deposit from a debtor when the utility company would not make the same demand of a new customer is to discriminate based upon the prepetition claim.” The bankruptcy court acknowledged, however, that Philadelphia Electric’s position “is not without support,” as 11 U.S.C. § 366(b) states in its first sentence that a utility company may discontinue service if a security deposit is not furnished within 20 days. The court then indicated that, predicated “upon a literal reading of this sentence,” a number of courts have allowed a utility to demand a deposit even though its own regulations or state law do not support the demand. In this regard it cited the following cases: In re Smith, Richardson & Conroy, Inc., 50 B.R. 5 (Bankr.S.D.Fla.1985); In re Marion Steel Co., 35 B.R. 188 (Bankr.N.D.Ohio 1983); In re Santa Clara Circuits West, Inc., 27 B.R. 680 (Bankr.D.Utah 1982); In re Northwest Recreational Activities, Inc., 8 B.R. 7 (Bankr.N.D.Ga.1980). Ultimately, the bankruptcy court decided that the purposes of 11 U.S.C. § 366, to limit the leverage a utility “could wield in collecting prepetition-debts,” while at the same time affording" }, { "docid": "13944637", "title": "", "text": "bills prior to the filing of the petition. The complaint relies primarily on section 366 of the Bankruptcy Code (the “Code”), which provides in pertinent part: (a) [Ejxcept as provided in subsection (b) of this section, a utility may not alter, refuse, or discontinue service to, or discriminate against, the trustee or the debtor solely on the basis of the commencement of a case under this title or that a debt owed by the debtor to such utility for service rendered before the order for relief was not paid when due. (b) [Sjuch utility may alter, refuse, or discontinue service if neither the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment. 11 U.S.C. § 366. The complaint alleged that PECO’s practices and policies violated § 366 in two distinct respects. First, the class maintained that according to the express language of the statute, PECO could not “refuse” to provide service in the twenty days following the filing of a bankruptcy petition, regardless of whether the service had been terminated pre- or post-petition. Second, it was claimed that PECO’s practice of requiring deposits of twice the average monthly bill only from residential customers in bankruptcy constituted discrimination in violation of the protections afforded in § 366. In response to these claims, PECO argued that the “refuse” language of § 366 must be interpreted as protecting debtors from the termination of existing service and not as prohibiting the utility from requiring payment of adequate assurance pri- or to the restoration of service. PECO also argued that it did not discriminate against the debtor class because its policy of requiring payment of arrearages in order to restore service to those not in bankruptcy whose service had been terminated was at least equal" }, { "docid": "14515234", "title": "", "text": "the Bankruptcy Code states: (a) Except as provided in subsection (b) of this section, a utility may not alter, refuse, or discontinue service to, or discriminate against, the trustee or the debtor solely on the basis of the commencement of a case under this title or that a debt owed by the debtor to such utility for service rendered before the order for relief was not paid when due. (b) Such utility may alter, refuse, or discontinue service if neither the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment. 11 U.S.C. § 366. In In re Gehrke, 57 B.R. 97, 98 (Bankr.D.Or.1985), the bankruptcy court ruled that section 366 and not section 365 governs written agreements for the furnishing of utilities and opined: Pursuant to § 366(b), a debtor need not cure prepetition defaults in order to continue to receive utility service. In contrast, § 365 requires cure (or adequate assurance of prompt cure) of defaults as a condition to assumption. § 365(b)(1). Since § 366 does not require cure of prepetition defaults but § 365 does, both sections cannot be applicable at the same time. The legislative history accompanying § 366 indicates that the section was designed to protect debtors from the cessation of utility service due to “the non payment of a bill that would be discharged in a bankruptcy case.” Notes of Committee on the Judiciary, Senate Report No. 95-989. Section 366 therefore is an exception to § 365 and the former therefore governs agreements for the furnishing of utilities. The fact that there is an express contract in writing does not remove the contract from the application of § 366. In In re Martinez, 92 B.R. 916, 918 (Bankr.D.Colo.1988), in which the bankruptcy court determined" }, { "docid": "15127840", "title": "", "text": "company as a matter of policy and practice, has chosen, in its discretion, not to request security deposits from applicants for residential service. The bankruptcy court then indicated that it was this policy of requiring a deposit only from commercial customers but not “from new residential customers” which underlies this ease. It said that the debtors argued that Philadelphia Electric could not demand a deposit from residential customers in bankruptcy if it did not do so from new residential customers, because it was precluded from discriminating against bankruptcy debtors by 11 U.S.C. § 366(a) which provides: (a) Except as provided in subsection (b) of this section, a utility may not alter, refuse, or discontinue service to, or discriminate against, the trustee or the debtor solely on the basis of the commencement of a case under this title or that a debt owed by the debtor to such utility for service rendered before the order for relief was not paid when due. The bankruptcy court noted that Philadelphia Electric urged that it was permitted to request the security deposits by 11 U.S.C. § 366(b) which provides: (b) Such utility may alter, refuse, or discontinue service if neither the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment. The bankruptcy court indicated that the purpose of 11 U.S.C. § 366(a) is to provide for utility service without interruption. See In re Monroe Well Service, Inc., 83 B.R. 317, 321 (Bankr.E.D.Pa.1988). It then said that 11 U.S.C. § 366(a) forbids a utility from discriminating against a debtor on the basis of a preexisting debt as well as by reason of the commencement of a bankruptcy case. Thus, in its view, “to demand a deposit from a debtor when the utility company would not" }, { "docid": "5979332", "title": "", "text": "on the basis that a debt owed by the debtor to such utility for service rendered before the order for relief was not paid when due. (b) Such utility may alter, refuse, or discontinue service if neither the trustee or the debtor, within 20 days after the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the deposit or other security necessary to provide adequate assurance of payment. Collier indicates that § 366 was promulgated to resolve a split in the Circuits, in cases under the Bankruptcy Act, as to whether the bankruptcy stay prevented a utility from threatening to terminate the service of a debtor in bankruptcy. 2 COLLIER ON BANKRUPTCY, 11366.01, at 366-1 to 366-3 (15th ed. 1986). The leading Third Circuit contribution to this controversy, a statement suggesting that, in that case, the interests of the debtor outweighed those of the utility, was In re Penn Central Transp. Co., 467 F.2d 100 (3d Cir.1972). In that case, the Court of Appeals prevented an electric service termination of a Debtor which had amassed a delinquent bill of $800,000.00 as long as the Debtor’s trustees made current payments, despite remanding the matter to the district court only to “consider feasible expedients for shortening the interval between the appellant’s supplying of energy and the trustees’ payment for it” to less than the normal one-month billing cycle. The attempt to resolve the split in the circuits set forth in the Code begins with § 366(a), which prohibits the utility from discrimination in providing future service to the debtor due to the existence of a pre-petition debt that might not be paid due to the bankruptcy, comparable to the prohibition of discrimination imposed upon governmental units and private employers in 11 U.S.C. § 525. However, unlike § 525, which requires no performance from the debtor to avoid discrimination, § 366(b) provides a “self-executing,” see 2 COLLIER, supra, 11366.03, at" }, { "docid": "14515233", "title": "", "text": "contrast to other creditors, being forced to extend credit to an estate during the time given for assumption or rejection of a lease. Because such a lessor cannot terminate the relationship with the debtor if prompt payment is not assured, the lessor becomes, in effect, an “involuntary extender of unsecured credit.” See also In re Pudgie’s Dev. of N.Y. Inc., 202 B.R. 832, 835-36 (Bankr.S.D.N.Y.1996); In re Telesphere Communications, Inc., 148 B.R. 525, 531 (Bankr.N.D.Ill.1992). Section 365(d)(10) was added to the Bankruptcy Code by the Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, 108 Stat. 4106 (1994). “After the passage of the 60-day abeyance period, the entitlement to ... rent is now automatic under § 365(d)(10).” In re Elder-Beerman Stores Corp, 201 B.R. 759, 763 (Bankr.S.D.Ohio 1996). In Leisure Time Sports, the court opined that sections 365(d)(3) and 365(d)(10) are the only Bankruptcy Code provisions requiring the estate to “ ‘timely1 ” perform the debtor’s obligations and constituted a “clear Congressional mandate that commercial lessors be given special protection.” Id. at 513. Section 366 of the Bankruptcy Code states: (a) Except as provided in subsection (b) of this section, a utility may not alter, refuse, or discontinue service to, or discriminate against, the trustee or the debtor solely on the basis of the commencement of a case under this title or that a debt owed by the debtor to such utility for service rendered before the order for relief was not paid when due. (b) Such utility may alter, refuse, or discontinue service if neither the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment. 11 U.S.C. § 366. In In re Gehrke, 57 B.R. 97, 98 (Bankr.D.Or.1985), the bankruptcy court ruled that section 366 and not section 365 governs" }, { "docid": "16894509", "title": "", "text": "congressional enactments, and when two statutes are capable of co-existence, it is the duty of courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.”) The bankruptcy court for the Southern District of Ohio has reached a similar conclusion, holding that a utility’s demand for security under Section 366(b) is not violative of the automatic stay of Section 362(a)(3). Hennen v. Dayton Power & Light Co. (In re Hennen), 17 B.R. 720 (Bkrtcy.S.D.Ohio 1982). None of the other subsections of Section 362(a) appear to apply in these circumstances. 2. Section 366 and Mountain Fuel’s demand for a security deposit Section 366 provides that: (a) Except as provided in subsection (b) of this section, a utility may not alter, refuse, or discontinue service to, or discriminate against, the trustee or the debt- or solely on the basis that a debt owed by the debtor to such utility for service rendered before the order for relief was not paid when due. (b) Such utility may alter, refuse, or discontinue service if neither the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment. Debtor relies on Collier’s statement that “discrimination against the debtor or trustee is flatly precluded by subsection 366(a) and not mentioned in subsection 366(b) which suggests that discrimination against a debtor simply because it has sought relief under the Bankruptcy Act is improper.” 2 Collier on Bankruptcy ¶ 366.03, at 366-4 (15th ed.1982). While it is true that Section 366(a) prohibits a utility from altering service to, refusing service to, discontinuing service to, or discriminating against the trustee or the debtor solely because a debt for pre-order-for-relief service was not paid when due, Section 366(a) is expressly made subject to Section 366(b). Section 366(b) permits" } ]

[ { "docid": "4607027", "title": "", "text": "the Creditor has violated the permanent injunction provisions of the order of discharge entered by Judge Coar. The effect of section 524(a) is an injunction against certain actions. It has long been the law in bankruptcy cases that just as willful violations of the automatic stay of 11 U.S.C. § 362 will give rise to contempt and sanctions, see, In re Brooks, 79 B.R. 479 (BAP 9th Cir.1987); Budget Service Co. v. Better Homes of Virginia, Inc., 804 F.2d 289 (4th Cir.1986), acts done in violation of the discharge injunction are voidable, Behrens v. Woodhaven Asso., 87 B.R. 971, 976, (Bankr.N.D.Ill.1988), and sanctionable. In re Barbour, 77 B.R. 530, 532 (Bankr.E.D.N.C.1987). Creditors cannot be allowed to willfully interfere with a debt- or’s fresh start by suing in non-bankruptcy courts on discharged debts. In this matter, there is no showing, from the limited record in this case, that ,the Creditor was aware at any time that the Debtor failed to attend the scheduled reaffirmation hearing to receive the admonitions Judge Coar would otherwise have given. On the other hand, it is undisputed that the Debtor never rescinded the reaffirmation agreement. Rather, she continued to make various payments thereunder after its execution and after her discharge, before going into default. The Creditor thereafter repossessed the vehicle, liquidated same, and apparently reduced the deficiency under the reaffirmation agreement to judgment in state court. The Debtor also made various payments in partial satisfaction of the deficiency judgment before retaining her original attorney in this matter. Accordingly, although the Creditor had full knowledge of the discharge order, it was operating on the assumption that it had a valid and enforceable reaffirmation agreement which the Debtor honored for some time post-discharge. In the absence of any showing that the Creditor knew the Debtor did not attend the reaffirmation hearing, the Court is not prepared to infer or find any willful violation of section 524(a). As a result, the Court does not find the Creditor in civil contempt. [4] Some courts have noted that civil contempt does not require a finding of willfulness or bad faith, for" } ]

[ { "docid": "108922", "title": "", "text": "this decision without violating bankruptcy law. Because in Parker the Ninth Circuit approved the option, exercised by the debtors in this case, of retaining property subject to a security interest and making the payments on the secured debt without reaffirming the debt, the court finds that the debtors did not circumvent the provisions of § 524(c), deliberately or otherwise. D. Civil Contempt There are at least two different grounds for imposing sanctions for the violation of § 362(a) and 524(a). First, both §§ 362(a) and 524(a) operate as injunctions against creditors, and a violation of either provision is punishable as contempt of court. Second, § 362(h) provides a separate statutory basis for imposing sanctions in appropriate eases. Third, there may be a private right of action for violation of the discharge injunction under § 524. 1. Contempt A bankruptcy court may award damages for a violation of the automatic stay or the discharge injunction under the court’s contempt power. State Bd. of Equalization v. Taxel (In re Del Mission Ltd.), 98 F.3d 1147, 1152 (9th Cir.1996) (automatic stay). Under Ninth Circuit law, such an award is supported by § 105, which authorizes a bankruptcy court to issue “any order ... that is necessary or appropriate to carry out the provisions of this title.” Id. Damages are a recognized sanction for contempt. See, e.g., Costa v. Welch (In re Costa), 172 B.R. 954, 963 (Bankr.E.D.Cal.1994) (§ 524 case). The purpose of sanctions for civil contempt is to compensate the opposing party for the injuries which arise from the contempt. Computer Communications, Inc. v. Codex Corp. (In re Computer Communications, Inc.), 824 F.2d 725, 731 (9th Cir.1987); Crystal Palace Gambling Hall, Inc. v. Mark Twain Indus., Inc. (In re Crystal Palace Gambling Hall, Inc.), 817 F.2d 1361, 1366 (9th Cir.1987); Costa, 172 B.R. at 963. Such an award is limited to the actual loss sustained. Crystal Palace, 817 F.2d at 1366. Actual damages are broadly construed to embrace consequential damages and include attorneys’ fees incurred in the civil contempt proceeding. Superior Propane v. Zartun (In re Zartun), 30 B.R. 543, 546 (9th" }, { "docid": "108925", "title": "", "text": "does not apply. See, e.g., Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 620 (9th Cir.1993); Computer Communications, 824 F.2d at 731; In re Sielaff, 164 B.R. 560, 568 (Bankr.W.D.Mich.1994) (finding that civil contempt and § 362(h) provide alternate grounds for imposing sanctions where the debtor is an individual). The bankruptcy discharge operates as a permanent injunction against all attempts by a creditor to collect a discharged debt. See, e.g., Costa v. Welch (In re Costa), 172 B.R. 954, 963 (Bankr.E.D.Cal.1994). In this case, there was also a specific court order enjoining all creditors (including Associates) from “in stituting or continuing any action or employing any process or engaging in any act to collect [any prepetition] debts as personal liabilities of the ... debtor[s].” Associates violated both the statutory discharge injunction and the specific discharge order in this case. Thus Associates violated both the automatic stay and the discharge injunction. Associates does not contest the authority of the court to impose contempt sanctions for these violations. 2. Liability under § 362(h) Entirely separate from the contempt power, § 362(h) authorizes the imposition of sanctions for willful violations of the automatic stay, where the debtor is an individual. There is no provision under § 524 analogous to § 362(h). Section 362(h) provides: An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. A recovery under this section is available only to individual debtors, a condition that is satisfied in this case. For the purposes of § 362(h), the Ninth Circuit has defined “willful” as follows: A “willful violation” does not require a specific intent to violate the automatic stay. Rather, the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to [take the action it did] is not relevant to whether the act was “willful” or whether compensation" }, { "docid": "1106624", "title": "", "text": "Torres, 117 B.R. at 382; see also Skinner and Waiiers, supra. The Court can impose upon a creditor who violates the injunction through civil contempt remedial and compensatory, but not punitive, sanctions. Id. 2. The central issues in this civil contempt proceeding are whether Stanley Stann willfully attempted to collect the discharged debt formerly due him from Eugene and Luba Andrus, and whether any part of Mr. Stann’s speech and sign wording was protected by the First Amendment to the United States Constitution. The petitioners have met their burden to prove by clear and convincing evidence his repeated willful violation of the permanent injunction under § 524. Mr. Stann is not entitled to interfere with Eugene and Luba Andrus’s fresh start as provided in the Bankruptcy Code, but he has sought to do so and will continue to do so unless and until stopped. 3. The three signs erected by Stanley Stann were not protected speech under the First Amendment to the United States Constitution, as he has argued, but were (and the third sign remains) continuing attempts as part of other efforts to collect the discharged debt in violation of 11 U.S.C. § 524(a)(2). When the intent of a sign displayed by a creditor is to coerce and harass the discharged debtor into paying the discharged debt, the sign is not protected speech. In re Sechuan City, Inc., 96 B.R. 37, 43 (E.D.Penn.1989). In Sechuan City, the creditor’s behavior was designed to coerce payment from the debtor; therefore, the court held the sign was not protected speech. Id. at 40. 4. The Fifth Circuit has held that a sign, with substantially the same word as the second and third signs Mr. Stann erected, was protected speech. Turner Advertising Company v. National Service Corporation, 742 F.2d 859 (5th Cir.1984). However, in finding those signs constitutionally protected, the Fifth Circuit noted that the message was “not being published by one whose profit interests are served by the view espoused.” Id. at 862. The Court also noted that the respondent was not presenting the message with.the expectation of remuneration. Id. The findings" }, { "docid": "1563241", "title": "", "text": "similar fact question to connect credit reporting to debt collection. We next turn to a review of that evidence in greater detail. Standard of Proof The Court first considers one of Defendant’s threshold arguments, which raises the question of the applicable standard of proof. “[I]n order to assess whether sufficient evidence is presented to require the case to go to trial for its resolution, the court must take into account the substantive evidentiary burden that will be applicable at trial.” Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, 10A Federal Practice and Procedure § 2727 (3d ed. West 1998). Defendant claims that there is no private right of action for violation of section 524, citing Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 422-23 (6th Cir.2000) . Instead, argues Defendant, a violation of the discharge injunction is to be pursued in a motion for civil contempt. In civil contempt proceedings, the movant must show a knowing violation of a court order by clear and convincing evidence. See In re Andrus, 184 B.R. 311, 315 (Bankr.N.D.Ill.1995). Defendant concludes that Plaintiff must prove his case by clear and convincing evidence, and not by a mere preponderance. Plaintiffs reply is silent on the question. The Court agrees with the Defendant’s take on the question. “The burden of proof is on the former debtor to establish by clear and convincing evidence that creditor violated the post-discharge injunction.” In re Pincombe, 256 B.R. 774, 782 (Bankr.N.D.Ill.2000). In considering this summary judgment motion, the court must therefore take into account this heightened evidentiary burden. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“[I]n ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden.”). With these preliminary considerations in hand, we turn to an examination of the summary judgment evidence, beginning with the plaintiffs motion to strike portions of the defendant’s affidavits. Plaintiffs Motion to Strike Portions of Defendant’s Affidavits As part of his Reply, Plaintiff has moved to strike two portions of the" }, { "docid": "1106622", "title": "", "text": "Stann in furtherance of his attempt to collect the discharged debt. He later replaced it in the same location with a third sign. The third sign was standing as of the date of the last hearing, and Stann has not in person or through counsel expressed willingness to remove it. The third sign repeats the same language as that of the second sign. Movant has shown by clear and convincing evidence that Stanley Stann willfully violated the injunction under 11 U.S.C. § 524 barring any effort by him to collect the discharged debt, all through his many repeated efforts, including posting of the second and third signs. Mr. and Mrs. Andrus sought, pursuant to Fed.R.Bankr.P. 9020, a finding that Mr. Stann was in civil contempt of the statutory injunction barring collection of a discharged debt. 11 U.S.C. § 524, and their attorney was appointed to prosecute the petition under Rule 9020. Comments of the Court from the bench on July 6,1995, are made part hereof and incorporated by this reference as additional Findings of Fact. Fact statements contained in the Conclusions of Law will stand as additional Findings of Fact. CONCLUSIONS OF LAW 1. When debtors are granted discharge of debt, they are protected from the creditor’s efforts to collect the debt from them personally by 11 U.S.C. § 524(a)(2). Under that provision, the discharge “operates as an injunction against the commencement or continuation of any action ... or an act, to collect, recover or offset any such debt as a personal liability of the debtor....” Willful violation of the injunction imposed under § 524(a)(2) warrants the finding of contempt. In re Torres, 117 B.R. 379, 382 (N.D.Ill.1990). To find a creditor in civil contempt, “the court must find that the offending party knowingly violated a definite and specific court order.” In re Johnson, 148 B.R. 532, 538 (N.D.Ill.1992). The burden is on the petitioner to prove the violation “by clear and convincing evidence.” In re Ryan, 100 B.R. 411, 417 (N.D.Ill.1989). A bankruptcy court can impose upon a creditor who violates the § 524 injunction sanctions for civil contempt." }, { "docid": "2312770", "title": "", "text": "the commencement or continuation of an action ... to collect, recover or offset any [discharged] debt as a personal liability of the debtor .... ” Section 524 does not provide a private right of action for debtors injured by a creditor’s violation of the discharge injunction. Walls v. Wells Fargo Bank, 276 F.3d 502, 509 (9th Cir.2002). However, “[S]eetion 524(a) may be enforced by the court’s contempt power under 11 U.S.C. section 105(a). See Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 509 (9th Cir.2002) (footnote omitted); see also Caldwell v. Unified Capital Corp. (In re Rainbow Magazine, Inc.), 77 F.3d 278, 284 (9th Cir.1996) (noting that ‘[t]here can be little doubt that bankruptcy courts have the inherent power to sanction vexatious conduct presented before the court’ as recognized by the statutory grant of power to the bankruptcy courts under 11 U.S.C. section 105(a)), accord Bessette v. Avco Financial Servs., Inc., 230 F.3d 439, 444-445 (1st Cir.2000); Hardy v. United States (In re Hardy), 97 F.3d 1384, 1388-89 (11th Cir.1996). The standard for finding a party in civil contempt is well settled: The moving party has the burden of showing by clear and convincing evidence that the contemnors violated a specific and definite order of the court. The burden then shifts to the contemnors to demonstrate why they were unable to comply.” F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir.1999) (citation omitted). As discussed by the Eleventh Circuit in Hardy, to justify sanctions, the movant must prove that the creditor (1) knew the discharge injunction was applicable and (2) intended the actions which violated the injunction. See Hardy, 97 F.3d at 1390 (citing Jove Eng’g, Inc. v. Internal Revenue Service, 92 F.3d 1539, 1555 (11th Cir.1996)). Renwick v. Bennett {In re Bennett), 298 F.3d 1059, 1069 (9th Cir.2002). Here the Debtors established that Lenahan had actual knowledge of their bankruptcy filing as of March 2004, when Ms. Johnson spoke with a representative of the firm and advised him of that filing. She asked if the firm wanted documentation and was told no. Despite that fact, in April" }, { "docid": "108924", "title": "", "text": "Cir. BAP 1983); Jane P. Mallor, Punitive Attorneys ’Fees for Abuse of the Judicial System, 61 N.C. L.Rev. 613, 620-21 (1983). Under Ninth Circuit law, contempt need not be willful. See, e.g., Crystal Palace, 817 F.2d at 1365; Perry v. O’Donnell, 759 F.2d 702, 704-06 (9th Cir.1985). However, a party’s inability to comply with a judicial order constitutes a defense to a charge of civil contempt. See United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983) (“While the court is bound by the enforcement order, it will not be blind to evidence that compliance is now factually impossible. Where compliance is impossible, neither the moving party nor the court has any reason to proceed with the civil contempt action.”); FTC v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir.1999). There is no good faith exception to the requirement of obedience to a court order. Peterson v. Highland Music, Inc., 140 F.3d 1313, 1323 (9th Cir.1998). A violation of the automatic stay is punishable by contempt, even where § 362(h) does not apply. See, e.g., Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 620 (9th Cir.1993); Computer Communications, 824 F.2d at 731; In re Sielaff, 164 B.R. 560, 568 (Bankr.W.D.Mich.1994) (finding that civil contempt and § 362(h) provide alternate grounds for imposing sanctions where the debtor is an individual). The bankruptcy discharge operates as a permanent injunction against all attempts by a creditor to collect a discharged debt. See, e.g., Costa v. Welch (In re Costa), 172 B.R. 954, 963 (Bankr.E.D.Cal.1994). In this case, there was also a specific court order enjoining all creditors (including Associates) from “in stituting or continuing any action or employing any process or engaging in any act to collect [any prepetition] debts as personal liabilities of the ... debtor[s].” Associates violated both the statutory discharge injunction and the specific discharge order in this case. Thus Associates violated both the automatic stay and the discharge injunction. Associates does not contest the authority of the court to impose contempt sanctions for these violations. 2. Liability under § 362(h) Entirely" }, { "docid": "1104228", "title": "", "text": "81 B.R. 669, 672 (Bankr.M.D.Fla.1988). Bankruptcy courts have frequently sanctioned creditors for willfully violating the discharge injunction. In some cases, the court has simply found that the debtor is entitled to compensation. In re Braun, 141 B.R. 133 (Bankr.N.D.Ohio 1992) (awarding attorneys’ fees, compensatory damages and punitive damages for willful violation of § 524). More frequently, courts have found the offending party in contempt. There are two separate grounds for such findings of contempt. Since § 524(a) is an injunction, some courts have applied the longstanding bankruptcy rule that willful violations of injunctions, such as the automatic stay, give rise to contempt and sanctions. See Behrens v. Woodhaven Ass’n, 87 B.R. 971, 976 (Bankr.N.D.Ill.1988) (awarding actual damages and attorneys’ fees). The more common approach, however, has been to find the party in contempt based on the bankruptcy court’s authority under 11 U.S.C. § 105. In re Barbour, 77 B.R. 530 (Bankr.E.D.N.C.1987) (contempt power authorizes awarding damages and attorneys’ fees for willful violation of § 524); In re Miller, 81 B.R. 669 (Bankr.M.D.Fla. 1988) (attorney who willfully violated permanent injunction found in contempt and held liable for damages incurred by debtor); In re Kimco Leasing, Inc., 144 B.R. 1001 (N.D.Ind.1992). In order to be found in civil contempt, the offending party must have knowingly and willfully violated a definite and specific court order. In re Ryan, 100 B.R. 411, 417 (Bankr.N.D.Ill.1989). There is no question but that in this case the RTC willfully and knowingly violated the confirmation order, the discharge injunction, and the final decree and should be found in civil contempt. The plaintiffs are entitled to recover from the RTC the actual damages and attorneys’ fees resulting from the aforesaid willful conduct and resulting civil contempt of the RTC. I. Actual Damages Shortly after the RTC posted the notice of foreclosure hearing, the debtors lost half of their tenants. While there was no direct evidence from the tenants as to why they left, a reasonable inference to be drawn from all of the evidence is that the tenants left the premises as a result of the notice of foreclosure" }, { "docid": "19735510", "title": "", "text": "of its dissenting colleague and follow circuit law as announced by Pardee and In re Gregory. In re Repp and cases following it are overruled. See, e.g., Sallie Mae Servicing Corp. v. Ransom (In re Ransom), 336 B.R. 790, 797-98 (9th Cir.BAP2005). . As we held in Zilog: A party who knowingly violates the discharge injunction can be held in contempt under section 105(a) of the bankruptcy code. See In re Bennett, 298 F.3d at 1069; Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 507 (9th Cir.2002) (holding that civil contempt is an appropriate remedy for a willful violation of section 524’s discharge injunction). In Bennett, we noted that the party seeking contempt sanctions has the burden of proving, by clear and convincing evidence, that the sanctions are justified. We cited with approval the standard adopted by the Eleventh Circuit for violation of the discharge injunction: \"[T]he movant must prove that the creditor (1) knew the discharge injunction was applicable and (2) intended the actions which violated the injunction.” 450 F.3d at 1007 (citing Renwick v. Bennett (In re Bennett), 298 F.3d 1059, 1069 (9th Cir.2002) (citing Hardy v. United States {In re Hardy), 97 F.3d 1384, 1390 (11th Cir.1996))). That the creditor may have believed that the discharge was inappropriately entered, or that it could be set aside under Rule 60(b), is of no consequence. A creditor is not free to violate the discharge injunction because it has doubts as to the validity of the discharge. If the creditor believes the discharge is defective, it may petition the bankruptcy court to reopen and set aside the judgment under Rule 60(b), but it may not commence collection proceedings unless and until the court grants such relief. If the bankruptcy court finds that the creditor here willfully violated the injunction, it shall, at the very least, impose sanctions to the extent necessary to make Espinosa whole. See 2 Collier Bankruptcy Manual (3d rev. ed.) ¶ 524.02[2][c] (“In cases in which the discharge injunction was violated willfully, courts have awarded debtors actual damages, punitive damages and attorney’s fees.”) (footnote omitted)." }, { "docid": "4941591", "title": "", "text": "Kmart Carp. (In re KMart Corp.), 381 F.3d 709, 714 (7th Cir. 2004); In re Suburban W. Properties, LLC, 504 B.R. 477, 483 (Bankr. N.D. Ill. 2013) (Barnes, J.) (“the Debtor—as the movant—bears the burden of proof’). This case is no exception. The same standard applies when a movant is trying to enforce a provision of a confirmed chapter 11 plan. See In re Irwin, 558 B.R. 743, 750 (Bankr. E.D. Pa. 2016) (burden of proof fell on the plan’s liquidating agent, who had moved to compel debtor’s payment pursuant to the confirmed plan). As is customary in bankruptcy, this burden is satisfied by a preponderance of the evidence. E.g., In re Woodbrook Assocs., 19 F.3d 312, 317 (7th Cir. 1994) (motion to dismiss case); In re Chicago Const. Specialties, Inc., 510 B.R. 205, 211 (Bankr. N.D. Ill. 2014) (Barnes, J.) (motion to authorize the debtor to reject all collective bargaining agreements); In re Chicago, Missouri & W. Ry. Co., 133 B.R. 488, 440 (Bankr. N.D. Ill. 1991) (Schwartz, C.J.) (motion for summary judgment). Guidance on how a debtor should proceed in seeking to enforce a discharge injunction is helpful in this matter. In that regard, The Debtors bear the burden of proof on this Motion .... In re Pincombe, 256 B.R. 774 (Bankr. N.D. Ill. 2000). To sustain the burden in this case, the Debtors must first prove that the debt at issue was discharged. In re Stoneking, 222 B.R. 650 (Bankr. M.D. Fla. 1998) (primary issue in action to enforce the § 524(a) injunction is whether the debt is one which was discharged); In re Toussaint, 259 B.R. 96 (Bankr. E.D.N.C. 2000) (creditor’s claim was not discharged, therefore no violation could occur). Once it has been determined that the debt was discharged, [the creditors] may be held in contempt if they willfully violated the injunction. In re Andrus, 184 B.R. 311 (Bankr. N.D. Ill. 1995). This burden is met by establishing that [the creditors] (1) had knowledge of the post-discharge injunction; and (2) intended the actions which violated the injunction. Hardy v. United States (In re Hardy), 97" }, { "docid": "23300066", "title": "", "text": "have held § 524 does not impliedly create a private right of action.” Id. at 422-23. Thus, the rule in the Sixth Circuit is that a debtor injured by a violation of the discharge injunction has no right to statutory damages. Instead, when a violation of the discharge injunction does occur, a debtor’s sole avenue of recourse— and the one for which is the traditional remedy for a violation of a court order — is to bring an action against the creditor for contempt. Id. at 421. Bankruptcy courts have both an inherent and, as set forth in § 105(a), the statutory power to hold parties in contempt. Id. at 423, fn. 1; In re Harris, 297 B.R. 61, 69 (Bankr.N.D.Miss.2003). When a violation of the discharge injunction of § 524(a) is at issue, a finding of contempt is appropriate when, under the identical standard as set forth in § 362(h), the creditor’s actions are found to be “willful.” In re Pincombe, 256 B.R. 774, 782-83 (Bankr. N.D.Ill.2000). Couched in the language of § 524, a “willful” violation of the discharge injunction takes place “if the creditor knew the discharge injunction was invoked and intended the actions which violated the discharge injunction.” Poole v. U.B. Vehicle Leasing, Inc. (In re Poole), 242 B.R. 104, 110 (Bankr.N.D.Ga.1999). Based therefore upon the foregoing analysis of § 524(a), two related legal conclusions logically follow. First, having found that Ocwen’s collection activities were violative of the type of acts proscribed by § 362(a)(6), such activities, having occurred postdischarge, similarly give rise to a violation of the discharge injunction as set forth in § 524(a)(2). See Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 425 (6th Cir.2000) (holding that it could not see how conduct not violative of § 362 could violate § 524). Similarly, since Ocwen’s postdiseharge collection activities were also found to be “willful” within the meaning of § 362(h), Ocwen is in contempt for violating the discharge injunction of § 524(a). A creditor found in contempt of violating the discharge injunction, is, in the court’s discretion, subject to sanctions. Arruda v." }, { "docid": "6443493", "title": "", "text": "had issued. Therefore, the Court will treat the motion for the rule as a motion for contempt under Bankruptcy Rule 9020. That raises the final question, i.e. whether a remedy exists for a violation of the 11 U.S.C. § 524 discharge injunction, and, if so, what that remedy is. The problem is, of course, that there is no equivalent sanction provision to 11 U.S.C. § 362(h) in 11 U.S.C. § 524(a) when the automatic stay becomes the permanent discharge injunction by operation of law on the grant of discharge. See 11 U.S.C. §§ 362(c)(2)(C), 524(a). Nevertheless, 11 U.S.C. § 524(a) is an injunction and it has long been the law in bankruptcy cases that willful violations of injunctions such as the automatic stay will give rise to contempt and sanctions. See, e.g., Budget Service Co. v. Better Homes of Virginia, 804 F.2d 289 (4th Cir.1986); In re Stephen W. Grosse, P.C., 84 B.R. 377 (Bankr.E.D.Pa.1988); Matter of National Marine Sales & Leasing, Inc., 79 B.R. 442 (Bankr.W.D.Mo.1987); In re Freels, 79 B.R. 358 (Bankr.E.D.Tenn.1987); In re Locasico, 77 B.R. 932 (Bankr.S.D.Fla.1987); In re Barbour, 77 B.R. 530 (Bankr.E.D.N.C.1987); In re Tweed, 76 B.R. 636 (Bankr.E.D.Tenn.1987); In re Linton, 35 B.R. 695 (Bankr.D.Idaho 1983). The same approach should apply under 11 U.S.C. § 524(a) even in the absence of a specific statutory sanctions provision. See, e.g., In re Barbour, supra. Creditors cannot be allowed to interfere with a debtor’s fresh start by suing in nonbankruptcy courts on discharged debts in the hopes the debtor will not defend or will not raise the bankruptcy discharge as a defense. See generally Countryman, The New Dischargeability Law, 45 Am. Bankr.L.J. 1 (1971). In addition, just as acts done in violation of the automatic stay are voidable, see In re Brooks, 79 B.R. 479 (BAP 9th Cir.1987); In re Clark, 79 B.R. 723 (Bankr.S.D.Ohio 1987), acts done in violation of the discharge injunction are voidable. Accordingly, since Woodhaven with full knowledge of the Debtors’ Chapter 7 case and discharge chose to sue them after the discharge on a prepetition contract, Woodhaven is found to have" }, { "docid": "4941592", "title": "", "text": "on how a debtor should proceed in seeking to enforce a discharge injunction is helpful in this matter. In that regard, The Debtors bear the burden of proof on this Motion .... In re Pincombe, 256 B.R. 774 (Bankr. N.D. Ill. 2000). To sustain the burden in this case, the Debtors must first prove that the debt at issue was discharged. In re Stoneking, 222 B.R. 650 (Bankr. M.D. Fla. 1998) (primary issue in action to enforce the § 524(a) injunction is whether the debt is one which was discharged); In re Toussaint, 259 B.R. 96 (Bankr. E.D.N.C. 2000) (creditor’s claim was not discharged, therefore no violation could occur). Once it has been determined that the debt was discharged, [the creditors] may be held in contempt if they willfully violated the injunction. In re Andrus, 184 B.R. 311 (Bankr. N.D. Ill. 1995). This burden is met by establishing that [the creditors] (1) had knowledge of the post-discharge injunction; and (2) intended the actions which violated the injunction. Hardy v. United States (In re Hardy), 97 F.3d 1384 (11th Cir. 1996) (creditor was in contempt of discharge injunction by attempting to collect discharged tax debt). In re Weinhold, 393 B.R. 623, 628-29 (Bankr. E.D. Wis. 2008). Before taking up these issues, however, the court must turn to F & D’s nonjuris-dictional arguments that this court should defer fi*om hearing the matter. B. Propriety of Relief from this Court F & D, while admitting this court’s jurisdiction, nonetheless argues that this court should not entertain the Motion. Its arguments sound in abstention, estoppel and laches. 1. Abstention F & D’s primary argument is that this court should abstain from interceding in a matter that has been proceeding through the Illinois state courts. In support of that argument, F & D attempts to persuade this court that the matter in question satisfies many of the twelve factors for abstention adopted by the Seventh Circuit. See In re Chicago, Milwaukee, St. Paul Pac. R.R., 6 F.3d 1184, 1189 (7th Cir. 1993) (adopting twelve factor analysis set forth by the Ninth Circuit in Eastport Assoc." }, { "docid": "15939822", "title": "", "text": "shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. 11 U.S.C. § 362(h). A violation of the stay is “willful” where the violator’s conduct is deliberate and with knowledge of the bankruptcy filing. In re Dencklau, 158 B.R. 796, 800 (Bankr.N.D.Iowa 1993). In imposing actual damages, the trial court has discretion to fashion the punishment to fit the circumstances. Hubbard v. Fleet Mortg. Co., 810 F.2d 778, 782 (8th Cir. 1987) (citing United States v. United Mine Workers, 330 U.S. 258, 303, 67 S.Ct. 677, 91 L.Ed. 884 (1947)). 11 U.S.C. § 524(a) Section 524(a) states, in pertinent part: (a) A discharge in a case under this title— (2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived. 11 U.S.C. § 524(a). Section 524(a)(2) replaces the automatic stay of § 362 with a permanent injunction against enforcement of all discharged debts after entry of the discharge. In re Waswiek, 212 B.R. 350, 352 (Bankr. D.N.D.1997). Unlike § 362(h), which authorizes an individual injured by a willful violation of the automatic stay to recover actual damages, attorney fees, and where appropriate, punitive damages, § 524(a) does not expressly mention such awards. In re Walker, 180 B.R. 834, 847 (Bankr. W.D.La.1995). Willful violation of the § 524(a)(2) injunction, however, will warrant a finding of civil contempt. Id.; Was- wick, 212 B.R. at 352. The burden rests with the movant to show by clear and convincing evidence that the offending creditor had knowledge of the discharge and willfully violated it by pursuing collection activities. Waswick, 212 B.R. at 352. ANALYSIS Discover Financial Services, Inc. has been properly served with Debt- or’s Motion for Sanctions. It has not filed an appearance or made contact with Debt- or’s counsel concerning this action. There have been numerous contacts made between Discover Financial Services, Inc. and Debtor by letters and telephone calls. While the letters" }, { "docid": "21399429", "title": "", "text": "compensate the debtor for amounts wrongfully withheld in violation of § 524. Id. (citations omitted). Additionally, the majority of courts allow punitive damages for violation of § 524, but differ as to their reasoning. In re Walker, 180 B.R. at 847 (citing In re Miller, 81 B.R. 669, 670 (Bankr.M.D.Fla.1988), later proceeding, In re Miller, 89 B.R. 942, 943 (Bankr.M.D.Fla.1988) (finding that an attorney acted “willfully and in clear disregard and disrespect of the bankruptcy laws and awarded punitive damages in the amount of $2,500.00”); In re Owen, 169 B.R. 261 (Bankr.D.Me.1994) (requiring debtor to demonstrate “malevolent intent” in violating § 524)). In the Hardy case, the Eleventh Circuit chose to exercise caution in invoking its inherent powers, as recommended by the Supreme Court in the case of Chambers v. NASCO, Inc., 501 U.S. 32, 44-A5, 111 S.Ct. 2123, 2132-33, 115 L.Ed.2d 27 (1991), and instead relied on the statutory contempt powers of 11 U.S.C. § 105 to determine the issue of sanctions for violating § 524. Id. at 1389. Under a court’s inherent contempt powers a finding of “bad faith” or “malevolent intent” is necessary for a finding of contempt. Id. However, under the court’s statutory contempt powers a court may award sanctions for contempt by finding that the creditor acted willfully according to the following test under which the movant must prove the creditor knew (1) that the discharge injunction was invoked and (2) intended the actions which violated the injunction. Id. at 1390. The burden of proof is on the movant to prove the willfulness of the violation by clear and convincing evidence. Jove Eng’g, Inc. v. I.R.S. (In re Jove Eng’g, Inc.), 92 F.3d 1539, 1545 (11th Cir.1996) (providing that “[a] finding of civil contempt must be based on ‘clear and convincing evidence’ that a court order was violated”). In Hardy, the court remanded the ease with instructions to the district court to make a determination of willfulness, but limited the sanctions available under § 105 to sanctions that “are coercive and not punitive.” However, the facts in Hardy are distinguishable from those of the present" }, { "docid": "8643354", "title": "", "text": "the equitable remedy utilized is demonstrably necessary to preserve a right elsewhere provided in the Code,” Noonan, 124 F.3d at 28, so long as the court acts consistent with the Code and does not alter the Code’s distribution of other substantive rights, see id.; SPM Mfg., 984 F.2d at 1311. It follows, therefore, and the parties agree, that § 105 provides a bankruptcy court with statutory contempt powers, in addition to whatever inherent contempt powers the court may have. See In re Hardy, 97 F.3d at 1389; In re Elias, 98 B.R. 332, 337 (N.D.Ill.1989); Cherry, III v. Arendall (In re Cherry, III), 247 B.R. 176, 186-87 (Bankr.E.D.Va.2000); Matthews v. United States (In re Matthews), 184 B.R. 594, 598 (Bankr.S.D.Ala.1995). Those contempt powers inherently include the ability to sanction a party. See In re Hardy, 97 F.3d at 1389-90 (recognizing that courts’ statutory contempt powers must include the award of monetary and other forms of relief “to the extent such awards are necessary and appropriate to carry out the provisions of the Bankruptcy Code”); Cherry, 247 B.R. at 187 (“The measure of the court’s power in civil contempt proceedings is determined by the requirements of full remedial relief.”). Against this background it is clear, as the appellee conceded at oral argument, that a bankruptcy court is authorized to invoke § 105 to enforce the discharge injunction imposed by § 524 and order damages for the appellant in this case if the merits so require. Consistent with this determination, bankruptcy courts across the country have appropriately used their statutory contempt power to order monetary relief, in the form of actual damages, attorney fees, and punitive damages, when creditors have engaged in conduct that violates § 524. See, e.g., In re Hardy, 97 F.3d at 1389-90; In re Elias, 98 B.R. at 337; Cherry, 247 B.R. at 191; In re Arnold, 206 B.R. 560, 568 (Bankr.N.D.Ala.1997); Wiley v. Mason (In re Wiley), 224 B.R. 58, 66 (Bankr.N.D.Ill.1998) (denying motion to dismiss), vacated on other grounds, 237 B.R. 677 (Bankr.N.D.Ill.1999) (finding class representative inadequate because she suffered no injury); Matthews, 184 B.R. at" }, { "docid": "16390005", "title": "", "text": "1989 U.S. District LEXIS 1193 (N.D.Ill.1989), app. dismissed 900 F.2d 97 (7th Cir.1990), the bankruptcy court awarded sanctions against a creditor for violating that injunction. The court explained: The problem is, of course, that there is no equivalent sanction provision to 11 U.S.C. § 524(a) when the automatic stay becomes the permanent discharge injunction by operation of law on the grant of discharge. See 11 U.S.C. §§ 362(c)(2)(C), 524(a). Nevertheless, 11 U.S.C. § 524(a) is an injunction and it has long been the law in bankruptcy cases that willful violations of injunctions such as the automatic stay will give rise to contempt sanctions. The same approach should apply under 11 U.S.C. § 524(a) even in the absence of a specific statutory sanctions provision. Creditors cannot be allowed to interfere with a debtor’s fresh start by suing non-bankruptcy courts on discharged debts in the hopes the debtor will not defend or will not raise the bankruptcy discharge as a defense. Id. at 976 (citations omitted). Although there is a split in authority over whether bankruptcy courts have the power to punish for civil contempt, see In re Elias, 98 B.R. 332, 337 (N.D.Ill.1989) (collecting eases), the majority and better reasoned view is that a bankruptcy court can impose sanctions for civil contempt for knowing violation of the discharge injunction under 11 U.S.C. § 524(a). Such sanctions can be remedial and compensatory but not punitive. In re UNR Industries, Inc., mem. op. 82 B 9841-45 (Bankr.N.D.Ill. 3/20/90); Ryan, 100 B.R. at 417; Behrens, 87 B.R. at 976; and cases cited therein. Civil contempt ... does not require a finding of wilfulness or bad faith, for it serves a remedial rather than a punitive purpose. It is enough if the order violated is specific and definite, and that the offending party has knowledge of it. Elias, 98 B.R. at 337. C. DISCHARGEABILITY OF THE TAX OBLIGATIONS 1. Procedural Issues and Burden of Proof As the discussion below will illustrate, Seventh Circuit precedent applicable to the dischargeability issue is clear. However, to apply that authority here more facts must be known: (1) First, did" }, { "docid": "16390006", "title": "", "text": "have the power to punish for civil contempt, see In re Elias, 98 B.R. 332, 337 (N.D.Ill.1989) (collecting eases), the majority and better reasoned view is that a bankruptcy court can impose sanctions for civil contempt for knowing violation of the discharge injunction under 11 U.S.C. § 524(a). Such sanctions can be remedial and compensatory but not punitive. In re UNR Industries, Inc., mem. op. 82 B 9841-45 (Bankr.N.D.Ill. 3/20/90); Ryan, 100 B.R. at 417; Behrens, 87 B.R. at 976; and cases cited therein. Civil contempt ... does not require a finding of wilfulness or bad faith, for it serves a remedial rather than a punitive purpose. It is enough if the order violated is specific and definite, and that the offending party has knowledge of it. Elias, 98 B.R. at 337. C. DISCHARGEABILITY OF THE TAX OBLIGATIONS 1. Procedural Issues and Burden of Proof As the discussion below will illustrate, Seventh Circuit precedent applicable to the dischargeability issue is clear. However, to apply that authority here more facts must be known: (1) First, did the IDR rely on Torres’ Use Tax obligations, the Retailers’ Occupation Tax obligations, the Regional Transportation Authority Tax obli gations, or some combination thereof, to obtain the state court order authorizing it to levy on Torres’ wages; and (2) Second, if the State relied only on the Retailer’s Occupation Tax and/or the Regional Transportation Authority Tax obligations, when were the returns for these taxes due and were those returns filed? Moreover, the procedural posture of the instant motion raises a number of difficulties. The IDR violated the discharge order only if the debts it sought to collect were discharged. The dischargeability of a debt depends on whether the debt was excepted from discharge under 11 U.S.C. § 523(a). A proceeding to determine the discharge-ability of a debt must be by Adversary proceeding under Bankruptcy Rule 7001(6) unless the parties clearly waive that requirement. The creditor bears the burden of proof on all elements necessary to establish nondischargeability. See, e.g., In re Bogstad, 779 F.2d 370, 372 (7th Cir.1985). Accordingly, if either the IDR or Torres" }, { "docid": "3156254", "title": "", "text": "or continuation of an action, the employment of process, or an act, to collect, recover or offset any ... debt [subject to such discharge] as a personal liability of the debt- or, whether or not discharge of such debt is waived.” 11 U.S.C. § 524(a)(2). By its terms, this statute prohibits affirmative action by a creditor to collect a discharged debt from a debtor. However, the Bankruptcy Code provides no private right of action to a debtor when a creditor violates the discharge injunction. See 11 U.S.C. § 524; Walls v. Wells Fargo Bank, 276 F.3d 502, 508-09 (9th Cir.2002); Cady v. SR Fin. Services (In re Cady), 385 B.R. 756, 757-58 (Bankr.S.D.Cal.2008); Barrientos v. Wells Fargo Bank, 2009 WL 1438152, *4, *5 (S.D.Cal. May 20, 2009). Therefore, a debtor may seek damages for violation of the injunction only by invoking the court’s power under 11 U.S.C. § 105(a) to redress contempt. A party who knowingly violates the discharge injunction can be held in civil contempt of court. See Espinosa v. United Student Aid Funds, Inc., 553 F.3d 1193, 1205 n. 7 (9th Cir.2008) (citing Renwick v. Bennett (In re Bennett), 298 F.3d 1059, 1069 (9th Cir.2002)). Section 105(a) provides: “The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.” The party seeking sanctions for contempt has the burden of proving, by clear and convincing evidence, that the sanctions are justified. Namely, the debtors must prove that the creditor (1) knew the discharge injunction was applicable, and (2) intended the actions which violated the injunction. See ZiLOG, Inc. v. Corning (In re ZiLOG, Inc.), 450 F.3d 996, 1007 (9th Cir.2006) (quoting Bennett at 1069). II At the end of 2007 Mr. Nordlund retired from his practice" }, { "docid": "1106623", "title": "", "text": "Fact statements contained in the Conclusions of Law will stand as additional Findings of Fact. CONCLUSIONS OF LAW 1. When debtors are granted discharge of debt, they are protected from the creditor’s efforts to collect the debt from them personally by 11 U.S.C. § 524(a)(2). Under that provision, the discharge “operates as an injunction against the commencement or continuation of any action ... or an act, to collect, recover or offset any such debt as a personal liability of the debtor....” Willful violation of the injunction imposed under § 524(a)(2) warrants the finding of contempt. In re Torres, 117 B.R. 379, 382 (N.D.Ill.1990). To find a creditor in civil contempt, “the court must find that the offending party knowingly violated a definite and specific court order.” In re Johnson, 148 B.R. 532, 538 (N.D.Ill.1992). The burden is on the petitioner to prove the violation “by clear and convincing evidence.” In re Ryan, 100 B.R. 411, 417 (N.D.Ill.1989). A bankruptcy court can impose upon a creditor who violates the § 524 injunction sanctions for civil contempt. Torres, 117 B.R. at 382; see also Skinner and Waiiers, supra. The Court can impose upon a creditor who violates the injunction through civil contempt remedial and compensatory, but not punitive, sanctions. Id. 2. The central issues in this civil contempt proceeding are whether Stanley Stann willfully attempted to collect the discharged debt formerly due him from Eugene and Luba Andrus, and whether any part of Mr. Stann’s speech and sign wording was protected by the First Amendment to the United States Constitution. The petitioners have met their burden to prove by clear and convincing evidence his repeated willful violation of the permanent injunction under § 524. Mr. Stann is not entitled to interfere with Eugene and Luba Andrus’s fresh start as provided in the Bankruptcy Code, but he has sought to do so and will continue to do so unless and until stopped. 3. The three signs erected by Stanley Stann were not protected speech under the First Amendment to the United States Constitution, as he has argued, but were (and the third sign" } ]